Petition for Writ of Certiorari — United States, Petitioner v. Washington, et al.

Supreme Court briefSep 8, 2021

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No.

In the Supreme Court of the United States

UNITED STATES OF AMERICA, PETITIONER

STATE OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

BRIAN M. BOYNTON

Acting Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

CHRISTOPHER G. MICHEL

Assistant to the Solicitor

General

MARK B. STERN

JOHN S. KOPPEL

Attorneys

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

QUESTION PRESENTED

Whether a state workers’ compensation law that applies exclusively to federal contract workers who perform services at a specified federal facility is barred by

principles of intergovernmental immunity, or is instead

authorized by 40 U.S.C. 3172(a), which permits the application of state workers’ compensation laws to federal

facilities “in the same way and to the same extent as if

the premises were under the exclusive jurisdiction of

the State.”

(I)

PARTIES TO THE PROCEEDING

Petitioner (plaintiff-appellant in the court of appeals)

is the United States of America. Respondents (defendants-appellees in the court of appeals) are the State of

Washington; Jay Robert Inslee, in his official capacity

as Governor of the State of Washington; Joel Sacks, in

his official capacity as Director of the Washington State

Department of Labor and Industries; and the Washington State Department of Labor and Industries.

RELATED PROCEEDINGS

United States District Court (E.D. Wash.):

United States v. State of Washington, No. 18-cv-5189

(June 13, 2019)

United States Court of Appeals (9th Cir.):

United States v. State of Washington, No. 19-35673

(Aug. 19, 2020) (initial panel opinion)

United States v. State of Washington, No. 19-35673

(Apr. 15, 2021) (en banc denial order and amended

panel opinion)

(II)

TABLE OF CONTENTS

Page

Opinions below .............................................................................. 1

Jurisdiction .................................................................................... 1

Constitutional and statutory provisions involved...................... 2

Statement ...................................................................................... 3

A. Factual and statutory background .................................. 3

B. Prior proceedings .............................................................. 8

Reasons for granting the petition ............................................. 11

A. The Ninth Circuit seriously erred in construing

40 U.S.C. 3172(a) to authorize the application of

HB 1723 ............................................................................ 12

1. HB 1723 discriminates against the United

States and the firms that employ federal

contract workers, in violation of the

intergovernmental-immunity principle of

the Supremacy Clause ............................................ 13

2. Section 3172(a) does not clearly and

unambiguously authorize the application of

HB 1723 .................................................................... 17

3. The court of appeals’ construction of Section

3172(a) is mistaken .................................................. 22

B. This Court’s review is warranted .................................. 28

Conclusion ................................................................................... 32

Appendix A — Court of appeals opinion (Aug. 19, 2020)...... 1a

Appendix B — Court of appeals order and amended

opinion (Apr. 15, 2021) ............................. 21a

Appendix C — District court order granting defendants’

motion for summary judgment

(June 13, 2019) .......................................... 76a

Appendix D — Statutory provisions..................................... 83a

Appendix E — Maps of the Hanford site ............................. 88a

(III)

TABLE OF AUTHORITIES

Cases:

Page

Dawson v. Steager, 139 S. Ct. 698, 702 (2019) ........ 13, 15, 18

Dennis v. Department of Labor & Indus.,

745 P.2d 1295 (Wash. 1987) .................................................. 5

FAA v. Cooper, 566 U.S. 284 (2012) ..................................... 21

Goodyear Atomic Corp. v. Miller, 486 U.S. 174

(1988) ........................................................................... passim

Hancock v. Train, 426 U.S. 167 (1976) ................................ 21

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316

(1819) .............................................................................. 13, 14

Murray v. Gerrick & Co., 291 U.S. 315 (1934).............. 20, 29

North Dakota v. United States, 495 U.S. 423 (1990) ......... 13

Roelofs v. United States, 501 F.2d 87

(5th Cir. 1974), cert. denied, 423 U.S. 830 (1975)............. 18

South Carolina v. Baker, 485 U.S. 505 (1988) ........ 13, 15, 24

Travis v. Reno, 163 F.3d 1000 (7th Cir. 1998),

cert. denied, 528 U.S. 1114 (2000) ..................................... 18

United States v. County of Fresno, 429 U.S. 452

(1977) ...................................................................................... 4

United States Dep’t of Energy v. Ohio, 503 U.S. 607

(1992) .................................................................................... 21

United States v. Lewis Cnty., 175 F.3d 671

(9th Cir.), cert. denied, 528 U.S. 1018 (1999) ......... 9, 26, 27

Washington v. United States, 460 U.S. 536 (1983) ...... 14, 29

Constitution, statutes, and rule:

U.S. Const. Art. VI (Supremacy Clause) ................ 2, 3, 8, 12

Act of June 25, 1936, ch. 822, 49 Stat. 1938 ........................... 5

Federal Employees’ Compensation Act,

5 U.S.C. 8101 et seq. .............................................................. 4

5 U.S.C. 8101(a)(1)............................................................. 4

Constitution, statutes, and rule—Continued:

Page

4 U.S.C 111(a) .................................................................. 10, 27

7 U.S.C. 1984 .................................................................... 10, 26

16 U.S.C. 835c-1(b) ................................................................ 32

40 U.S.C. 3172 ................................................................ 5, 8, 17

40 U.S.C. 3172(a) .......................................................... passim

40 U.S.C. 3172(c) ...................................................................... 5

42 U.S.C. 9620(a)(4) ......................................................... 10, 27

49 U.S.C. 5126 ........................................................................ 32

H.B. 1490, 66th Leg., Regular Sess. (2019) ........................ 30

H.B. 1723, 66th Leg., Regular Sess. (2018) .......................... 3

Wash. Rev. Code Ann. (West 2020):

(Washington Industrial Insurance Act)

§ 51.04.030 .......................................................................... 6

§ 51.08.140 .......................................................................... 5

§ 51.12.060 .......................................................................... 5

§ 51.14.010 .......................................................................... 6

§ 51.28.055 .......................................................................... 5

§ 51.32.010 .......................................................................... 5

§ 51.32.180 .......................................................................... 5

§ 51.32.185 ........................................................................ 18

§ 51.32.187 .......................................................................... 4

§ 51.32.187(1)(a) ........................................................... 6, 14

§ 51.32.187(1)(b) ...................................................... passim

§ 51.32.187(2) ...................................................................... 7

§ 51.32.187(2)(a) ................................................................. 7

§ 51.32.187(2)(b) ................................................................. 7

§ 51.32.187(3)-(4) ................................................................ 7

§ 51.32.187(4)(a) ............................................................... 20

§ 51.32.187(5)(a)-(b) ........................................................... 7

Sup. Ct. R. 10(c) ..................................................................... 28

Miscellaneous:

Page

H.R. Rep. No. 2656, 74th Cong., 2d Sess. (1936) ................ 20

S. Rep. No. 2294, 74th Cong., 2d Sess. (1936)..................... 20

U.S. Army Corps of Engineers, Formerly Used

Defense Sites, https://www.usace.army.mil/

Missions/Environmental/Formerly-Used-DefenseSites/FUDS-GIS/House (last visited Sept. 7, 2021) ........ 31

U.S. Department of Energy:

Cleanup Sites, https://www.energy.gov/em/

cleanup-sites (last visited Sept. 7, 2021) .................. 31

Hanford Site: Hanford History,

https://go.usa.gov/xFdtn (last visited Sept. 7,

2021) .............................................................................. 3

In the Supreme Court of the United States

No.

UNITED STATES OF AMERICA, PETITIONER

STATE OF WASHINGTON, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

The Acting Solicitor General, on behalf of the United

States, respectfully petitions for a writ of certiorari to

review the judgment of the United States Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The initial opinion of the court of appeals (App., infra, 1a-20a) is reported at 971 F.3d 856. The order of

the court of appeals denying a petition for rehearing en

banc, the concurring and dissenting opinions accompanying that order, and the amended panel opinion (App.,

infra, 21a-75a) are reported at 994 F.3d 994. The order

of the district court (App., infra, 76a-82a) is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

August 19, 2020. A petition for rehearing was denied on

April 15, 2021 (App., infra, 21a-23a). By orders dated

(1)

March 19, 2020, and July 19, 2021, this Court extended

the time within which to file any petition for a writ of

certiorari due on or after March 19, 2020, to 150 days

from the date of the lower-court judgment, order denying discretionary review, or order denying a timely petition for rehearing, as long as that judgment or order

was issued before July 19, 2021. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Supremacy Clause of the United States Constitution provides in pertinent part that “[t]his Constitution, and the Laws of the United States which shall be

made in Pursuance thereof * * * , shall be the supreme

Law of the Land.” U.S. Const. Art. VI.

Section 3172(a) of Title 40 provides:

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).

Other pertinent statutory provisions are reprinted in

the appendix to this petition. App., infra, 83a-87a.

STATEMENT

In 2018, the State of Washington enacted House Bill

1723, 66th Leg., Regular Sess. (H.B. 1723), a workers’

compensation provision that applies exclusively to federal contract workers at a federally owned site in the

State. Wash. Rev. Code Ann. § 51.32.187 (West 2020)

(App., infra, 83a-87a). 1 The United States filed suit

against the State and related parties (respondents in

this Court), alleging that HB 1723’s discriminatory

treatment of the federal government and of the firms

that employ the federal contract workers violates the

intergovernmental-immunity principle of the Supremacy Clause. App., infra, 3a. The district court granted

summary judgment to respondents. Id. at 76a-82a. A

panel of the court of appeals affirmed. Id. at 1a-20a.

The panel subsequently amended its opinion, and the

court denied a petition for rehearing en banc over the

dissent of four judges. Id. at 21a-75a.

A. Factual And Statutory Background

1. As part of the Manhattan Project, the United

States acquired land near Hanford, Washington, and

built facilities that ultimately “produced nearly twothirds of the nation’s weapons grade plutonium for use

in the United States nuclear program during World

War II and the Cold War.” App., infra, 2a; see U.S.

Dep’t of Energy (DOE), Hanford Site: Hanford History, https://go.usa.gov/xFdtn. While vital to the Nation’s defense, the Hanford site “generated significant

This petition uses the term “federal contract workers” to refer

to individuals who are employed by private firms that have entered

into contracts or subcontracts to perform services for the federal

government. All citations to the Revised Code of Washington Annotated (Wash Rev. Code Ann.) are to the West 2020 edition.

amounts of highly radioactive and chemically hazardous

waste.” App., infra, 2a. The site was decommissioned

in 1989, and DOE is now overseeing a massive cleanup

“expected to last for at least six more decades.” Ibid.

As relevant here, cleanup and similar activities at

and around the Hanford site are performed by four distinct categories of workers. First, a “relatively small

workforce of about 400 DOE employees manages contracts and provides oversight” of the federal project.

C.A. E.R. 109. Second, roughly 10,000 federal contract

workers perform most of the day-to-day work associated with the DOE cleanup. App., infra, 4a. Their duties range from hazardous work, such as remediating

waste sites and transporting radioactive debris, to the

typical office jobs of administrative assistants, accountants, and lawyers. C.A. E.R. 71, 74, 109. Third, Washington state regulators conduct frequent inspections

throughout the Hanford site, including in the areas

where radioactive and chemically hazardous waste are

present. Id. at 75-76, 109-110. Finally, private employees on and near the Hanford site, although not part of

the federal cleanup, “do many of the same types of hazardous jobs” as the federal contract workers. Id. at 74.

2. Federal employees at Hanford, like all other federal employees, receive workers’ compensation coverage through the Federal Employees’ Compensation Act

(FECA), 5 U.S.C. 8101 et seq. The FECA does not apply to individuals, including federal contract workers,

who are directly employed by entities other than the

federal government. 5 U.S.C. 8101(a)(1).

Absent congressional consent, States generally have

limited authority to enforce their laws at federally

owned facilities or on federal land. See Goodyear

Atomic Corp. v. Miller, 486 U.S. 174, 180-182 & nn.1-4

(1988). In 1936, to fill those gaps in coverage, Congress

enacted a statute (now codified without substantial

change at 40 U.S.C. 3172) that permits the state “authority” charged with enforcing workers’ compensation

laws to “apply” those laws to federal land and facilities

within the State “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); see Act of June

25, 1936, ch. 822, 49 Stat. 1938; App., infra, 5a & n.3, 12a

& n.6. That law does not affect the FECA’s coverage of

federal employees. 40 U.S.C. 3172(c).

Pursuant to that authorization, Washington has long

applied its workers’ compensation law—the Washington Industrial Insurance Act (WIIA)—to federal land

and property within the State. Wash. Rev. Code Ann.

§ 51.12.060; see App., infra, 4a-5a & n.2. Accordingly,

federal contract workers, private employees, and state

employees at Hanford are covered by the state workers’

compensation system, while federal employees remain

covered by the FECA. See App., infra, 5a-6a.

3. Workers covered by the WIIA generally receive

benefits only if they suffer an injury or illness “in the

course of [their] employment.” Wash. Rev. Code Ann.

§ 51.32.010. Of particular relevance here, workers are

entitled to benefits if they have an “[o]ccupational

disease”—a “disease or infection [that] arises naturally

and proximately out of employment.” Id. §§ 51.08.140,

51.32.180. To obtain occupational-disease benefits,

workers must establish that their conditions are “probably, as opposed to possibly, caused by the[ir] employment.” Dennis v. Department of Labor & Indus., 745

P.2d 1295, 1301 (Wash. 1987). A claim for occupationaldisease benefits is generally subject to a two-year statute of limitations. Wash. Rev. Code Ann. § 51.28.055.

Employers covered by the WIIA are required to provide workers’ compensation coverage in one of two

ways: by paying premiums to a state-administered benefits fund, or by self-insuring and paying benefits directly to their employees. Wash. Rev. Code Ann.

§ 51.14.010. Under Washington law, DOE may serve as

the self-insured employer of federal contract workers,

even though the contract workers are not federal employees. Id. § 51.04.030. DOE performs that function

for most of its contract workers at Hanford and is accordingly responsible for paying their workers’ compensation benefits. See App., infra, 6a; C.A. E.R. 111113, 121-126. The firms that employ other federal contract workers provide workers’ compensation coverage

for their employees and are then reimbursed by DOE.

See App., infra, 6a; C.A. E.R. 111-113. The allocation

of costs between the federal government and the firms

that employ federal contract workers is determined by

agreements that define DOE’s responsibility for covering the workers’ compensation costs that particular

firms incur. See C.A. E.R. 111-113.

4. In 2018, Washington enacted HB 1723, a retroactive amendment to the state workers’ compensation law

that applies exclusively to “United States department

of energy Hanford site workers.” Wash. Rev. Code

Ann. § 51.32.187(1)(b). That term is defined in relevant

part as individuals who have “engaged in the performance of work, either directly or indirectly, for the

United States” at specified locations on the Hanford

site “for at least one eight-hour shift.” Ibid. The specified locations exclude land owned by the State or leased

to private companies. Id. § 51.32.187(1)(a). HB 1723

covers at least 100,000 current and former federal

contract workers who have performed services at Hanford during the past eight decades. App., infra, 7a.

HB 1723 departs from the State’s general workers’

compensation scheme in several dramatic ways. While

most workers’ compensation claimants must demonstrate a causal link between their medical conditions

and their employment, p. 5, supra, HB 1723 creates a

“prima facie presumption” that specified illnesses “are

occupational diseases” triggering benefits eligibility.

Wash. Rev. Code Ann. § 51.32.187(2)(a). The specified

illnesses are defined broadly and include common conditions such as “[r]espiratory disease,” numerous cancers, and “[n]eurological disease.” Id. § 51.32.187(3)-(4).

The presumption of work-connection applies whether or

not the contract worker performed dangerous work at

Hanford, and it can be rebutted only “by clear and convincing evidence” that the illness had a different cause.

Id. § 51.32.187(2)(b). HB 1723 applies “for the lifetime”

of a covered contract worker and allows reopening of

previously denied claims, including by a deceased contract worker’s survivors. Id. § 51.32.187(5)(a)-(b).

HB 1723 thus makes it far easier for current and former Hanford federal contract workers to obtain workers’ compensation benefits. It consequently exposes

their employers—and by extension the United States—

to massive new costs that similarly situated state and

private employers do not incur. See C.A. E.R. 74-76,

108-112, 121-126. Those effects were well known to the

state legislators who enacted HB 1723. See, e.g., D. Ct.

Doc. 20, at 7 (Mar. 1, 2019) (quoting sponsor’s statement

that the State would have “no further financial obligation under this bill” and that the costs “would be paid

for by the federal program”); C.A. E.R. 101 (state fiscal

analysis stating that “DOE will be responsible for all

benefit-related costs arising out of this bill”) (citation

omitted).

B. Prior Proceedings

1. The United States sued respondents in federal

district court, alleging that HB 1723 violates the intergovernmental-immunity principle of the Supremacy

Clause. App., infra, 76a. The court recognized that

“the Supremacy Clause [generally] prohibits states

from * * * discriminating against * * * the federal

government,” but that “Congress can provide clear and

unambiguous authorization for state regulations that

would otherwise be impermissible.” Id. at 79a. The

court concluded that 40 U.S.C. 3172 provides such authorization for HB 1723. App., infra, 79a. In the court’s

view, Section 3172(a) allows a State to “regulate federal

lands within its geographical boundaries with all the

tools that could be brought to bear on non-federally

owned land,” even if the result is discrimination against

the federal government or against firms with which the

government contracts. Id. at 80a. The district court accordingly granted summary judgment to respondents.

Id. at 81a.

2. A panel of the court of appeals affirmed. App.,

infra, 1a-20a. The panel recognized that “state laws are

invalid if they * * * discriminate against the Federal

Government or those with whom it deals * * * unless

Congress provides ‘clear and unambiguous’ authorization for such regulation.” Id. at 9a (citations, internal

quotation marks, and brackets omitted). The panel observed that HB 1723 “applies only to” federal contract

workers. Ibid. The panel accordingly stated that

“whether HB 1723 violates the doctrine of intergovernmental immunity” depends on whether Section 3172(a)’s

waiver of immunity encompasses state “workers’ com-

pensation laws that apply uniquely to the workers of

those with whom the Federal Government deals.” Id.

at 10a.

The panel held that Section 3172(a) authorizes such

a law. App., infra, 10a-18a. In support of that conclusion, the panel relied principally on Section 3172(a)’s

use of the phrase “as if the premises were under the exclusive jurisdiction of the state.” See id. at 16a-18a.

The panel stated that, when that phrase is read together

with “the phrase ‘in the same way and to the same extent[,]’ * * * 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.” Id. at 16a-17a (citation omitted). The panel accordingly understood Section 3172(a) to allow a State

“to apply workers’ compensation laws to federal land located in the State, without limitation,” subject only to

“constitutional constraints” other than intergovernmental immunity. Id. at 18a-19a.

The panel rejected the government’s contention that

Section 3172(a) does not authorize discrimination

against the United States or those with whom it deals.

App., infra, 12a-16a. The panel stated that “[t]he 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.’ ” Id. at 12a. It also noted this Court’s statement in

Goodyear Atomic that Section 3172(a)’s materially

identical predecessor “places no express limitation on

the type of workers’ compensation scheme that is authorized.” Id. at 13a (quoting 486 U.S. at 183) (emphasis

added). The panel further relied on the Ninth Circuit’s

prior holding in United States v. Lewis County, 175

F.3d 671, cert. denied, 528 U.S. 1018 (1999), that a state

tax applicable to federal and private farmland but not

to state-owned farmland was authorized by a federal

law that permitted States to tax federal farmland “in

the same manner and to the same extent as other property is taxed,” 7 U.S.C. 1984. App., infra, 13a-15a. Finally, the panel suggested that other federal statutes

more explicitly codify a nondiscrimination rule, see

4 U.S.C. 111(a); 42 U.S.C. 9620(a)(4), and inferred that

Section 3172(a) would include similar language if Congress had intended to restrict state workers’ compensation schemes in that manner. App., infra, 15a-18a & n.7.

3. In response to a petition for rehearing en banc,

the panel amended one sentence of its opinion, see App.,

infra, 22a, and the court of appeals denied rehearing

over the dissent of four judges, id. at 23a.

In his dissent, Judge Collins—joined by Judges Callahan, Bennett, and Bress—described the panel’s holding as an “astonishing” and “egregious” error that construed Section 3172(a) to “mean the exact opposite of

what its words say” and “defied” this Court’s “directly

controlling” decision in Goodyear Atomic. App., infra,

38a-40a. The dissent emphasized that Section 3172(a)

authorizes “the application of the ‘workers’ compensation laws’ of a State to employees at federal facilities

only ‘in the same way and to the same extent’ as if the

facilities were not under federal jurisdiction.” Id. at 39a

(emphasis added; citation omitted). The dissent observed that the Goodyear Atomic Court had described

the same statutory language as “compel[ling] 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.” Ibid.

(quoting 486 U.S. at 183-184). In the dissenters’ view,

that statutory text and this Court’s construction in

Goodyear Atomic “unambiguously required [the panel]

to strike down” HB 1723, because HB 1723’s “whole

point” is to treat federal contract workers at Hanford

differently from other workers. Id. at 39a-40a. The dissent added that the panel’s decision could inflict substantial “financial consequences” on the United States

and would permit “any State in the Ninth Circuit * * *

to impose its own highly burdensome and facially discriminatory workers’ compensation rules against the

Federal Government.” Id. at 56a.

Judge Milan Smith, the author of the panel opinion,

filed an opinion concurring in the denial of rehearing en

banc. App., infra, 23a-37a. He construed Section

3172(a) to mean that “a state may enact a workers’ compensation scheme for federally-owned property as long

as it could enact the same scheme ‘in the same way and

to the same extent’ if the property were under the jurisdiction of the state.” Id. at 25a. Because “Washington could enforce a version of HB 1723 that did not involve the Federal Government * * * to a hypothetical

state-owned Hanford site,” Judge Smith concluded that

the State could apply HB 1723 at Hanford, even though

no such Washington law actually applies to individuals

other than Hanford federal contract workers. Ibid. (citation omitted).

REASONS FOR GRANTING THE PETITION

HB 1723 explicitly discriminates against the United

States and those with whom it deals, and the Ninth Circuit badly erred in upholding the law’s application to

federal contract workers at the Hanford site. In authorizing a state workers’ compensation authority to “apply” the State’s “workers’ compensation laws” to federal facilities “in the same way and to the same extent

as if the premises were under the exclusive jurisdiction

of the State,” 40 U.S.C. 3172(a) (emphasis added), Congress did not permit States to adopt laws that impose

unique burdens on the United States and the firms that

it engages to carry out federal functions. The panel’s

holding that Section 3172(a) authorizes such discrimination conflicts with this Court’s binding construction of

the relevant statutory language in Goodyear Atomic

Corp. v. Miller, 486 U.S. 174 (1988).

The practical consequences of the panel’s mistake

are far-reaching. Even if the Hanford site is considered

in isolation, the decision is likely to cost the United

States tens of millions of dollars annually for the remainder of the 21st century. And the panel’s logic opens

the door to discriminatory state legislation targeting

other federal facilities throughout the Nation’s largest

circuit. This Court should intervene to forestall the

“sweeping implications” of the panel’s “egregious error.” App., infra, 56a-57a (Collins, J., dissenting from

denial of rehearing en banc.).

A. The Ninth Circuit Seriously Erred In Construing 40

U.S.C. 3172(a) To Authorize The Application Of HB 1723

By discriminating against the firms that employ federal contract workers, with consequent financial harm

to the United States, HB 1723 violates the principle of

intergovernmental immunity embodied in the Supremacy Clause. In enacting Section 3172(a), Congress did

not clearly and unambiguously consent to such discrimination. The court of appeals’ contrary conclusion is

profoundly wrong.

1. HB 1723 discriminates against the United States and

the firms that employ federal contract workers, in violation of the intergovernmental-immunity principle

of the Supremacy Clause

a. The doctrine of federal intergovernmental immunity is “almost as old as the Nation.” Dawson v.

Steager, 139 S. Ct. 698, 702 (2019). It traces its roots to

this Court’s holding in McCulloch v. Maryland, 17 U.S.

(4 Wheat.) 316 (1819), that States “have no power, by

taxation or otherwise,” to “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.

In its modern form, the intergovernmental-immunity doctrine protects the United States in two distinct

ways. First, a State may not tax or regulate “the United

States directly.” South Carolina v. Baker, 485 U.S. 505,

523 (1988). Second, while a State may tax or regulate

“private parties with whom [the federal government]

does business,” it may not “discriminate against the

United States or those with whom it deals.” Ibid.; see,

e.g., North Dakota v. United States, 495 U.S. 423, 435

(1990) (plurality opinion); id. at 444 (Scalia, J., concurring in the judgment).

Of particular relevance here, the “nondiscrimination

rule” recognizes that “a regulation imposed on one who

deals with the Government has as much potential to obstruct governmental functions as a regulation imposed

on the Government itself.” North Dakota, 495 U.S. at

437-438 (plurality opinion). Such a regulation is accordingly valid only if it is “imposed on some basis unrelated

to the object’s status as a Government contractor or

supplier”—that is, if it is “imposed equally on other similarly situated constituents of the State.” Ibid.

The nondiscrimination aspect of the intergovernmental-immunity doctrine reflects the structural principle that the greatest “security against the abuse” of

governmental power is the requirement that the government “act[] upon its own constituents.” McCulloch,

17 U.S. (4 Wheat.) at 428. When a State regulates those

who deal with the federal government in the same way

that it regulates similarly situated others, “there is little chance that the State will take advantage of the Federal Government.” Washington v. United States, 460

U.S. 536, 546 (1983). But that “political check against

abuse * * * is absent when the State taxes [or regulates] only a federal function.” United States v. County

of Fresno, 429 U.S. 452, 458 (1977). While a “State’s

constituents can be relied on to vote out of office any

legislature that imposes” excessive taxes or regulation

on them, they “cannot be relied upon to be similarly motivated” when the tax or regulation “is instead solely on

a federal function.” Id. at 458-459.

b. HB 1723 does exactly what the intergovernmental-immunity doctrine forbids. The statute applies exclusively to “United States department of energy Hanford site workers”—contract workers who perform services, “directly or indirectly, for the United States.”

Wash. Rev. Code Ann. § 51.32.187(1)(b). It excludes

portions of the Hanford site that are owned by the State

or leased to private entities. Id. § 51.32.187(1)(a). And

by eliminating the usual requirement that applicants for

workers’ compensation benefits establish a causal link

between their medical conditions and their employment, HB 1723 greatly expands benefits eligibility for a

specific class of federal contract workers. Although

that differential treatment benefits the individual federal contract workers covered by the statute, it

drastically increases the workers’ compensation costs of

the firms that employ them, with substantial adverse financial consequences for the United States. See p. 7,

supra. 2

Respondents contended below (C.A. Br. 33-37) that

HB 1723 does not impermissibly discriminate against

the federal government because Hanford federal contract workers perform uniquely dangerous tasks. A

State may treat federal contract workers differently

than state or private employees if “significant differences between the two classes justify the differential

treatment.” Dawson, 139 S. Ct. at 703 (citation and internal quotation marks omitted). If Washington were

actually distinguishing between workers who do and do

not perform hazardous duties, HB 1723 would permissibly classify “by reference to job responsibilities.” Id.

at 705. The “statute [Washington] enacted,” however,

“does not classify” in that way. Id. at 706. Instead, HB

1723’s coverage turns on whether a particular employee

is a “United States department of energy Hanford site

worker[]”—i.e., an individual at the Hanford facility

who is “engaged in the performance of work, either

As noted above, pursuant to contracts and subcontracts between

the federal government and the various firms involved, DOE pays

workers’ compensation costs directly for most of its contract workers and reimburses other firms for their workers’ compensation

costs. See p. 6, supra. Thus, under current contractual arrangements, almost all of the costs of HB 1723 will ultimately fall on DOE.

C.A. E.R. 111-113. But even if those arrangements were changed

so that the relevant private firms bore the costs of HB 1723 without

direct federal reimbursement, the statute would still violate the intergovernmental-immunity doctrine, which prohibits discrimination

against “the United States or those with whom it deals.” Baker, 485

U.S. at 523 (emphasis added).

directly or indirectly, for the United States.” Wash.

Rev. Code Ann. § 51.32.187(1)(b).

Washington’s failure to apply HB 1723 to similarly

situated Hanford workers vividly illustrates the discrimination. HB 1723 does not apply to employees of

the private company Perma-Fix Northwest—which is

adjacent to the Hanford site—who “do many of the

same types of hazardous jobs Hanford [federal contract

workers] do, including handling and packaging radioactive” waste. C.A. E.R. 74. HB 1723 also does not apply

to employees at the private company US Ecology—

which is located within the Hanford site—who “do the

type of work done by federal contractors at Hanford,”

including “dispos[ing] of low-level radioactive waste.”

Ibid.; see App., infra, 88a-89a (maps of the Hanford

site). And HB 1723 does not apply to Washington state

employees who regularly “conduct inspections throughout the cleanup areas” at Hanford, including the portions of the facility where radioactive waste is present.

C.A. E.R. 75; see id. at 75-76.

HB 1723’s discriminatory effects are particularly

acute because the law excludes private and state workers who perform hazardous duties at Hanford, while

covering federal-contract-worker “administrative assistants, secretaries, lawyers, risk assessors, accountants,

and other professionals,” who “do not enter hazardous

waste sites or radiological areas during the course of

their employment.” C.A. E.R. 71. And as noted, HB

1723 applies to every federal contract worker who has

worked a single eight-hour shift at any time in Hanford’s history. Wash. Rev. Stat. Ann. § 51.32.187(1)(b).

Thus, rather than providing especially generous coverage for workers who perform hazardous duties, without

regard to the identities of their employers, HB 1723

imposes “blatant facial discrimination against the Federal Government.” App., infra, 39a (Collins, J., dissenting from denial of rehearing en banc).

2. Section 3172(a) does not clearly and unambiguously

authorize the application of HB 1723

The Ninth Circuit panel did not accept respondents’

contention that HB 1723 is nondiscriminatory. To the

contrary, the panel recognized that HB 1723 would “violate the doctrine of intergovernmental immunity” unless Congress had provided “ ‘clear and unambiguous’

authorization” for its application to federal facilities.

App., infra, 3a, 9a (quoting Goodyear Atomic, 486 U.S.

at 180). The only federal law that respondents suggest

could provide such authorization is 40 U.S.C. 3172(a).

Section 3172(a), however, does not authorize—let alone

clearly and unambiguously authorize—the application

to federal facilities of state workers’ compensation laws

that discriminate against the United States or the firms

that employ federal contract workers.

a. Section 3172 is titled “Extension of state workers’

compensation laws to buildings, works, and property of

the Federal Government.” Subsection (a), titled “Authorization of Extension,” provides:

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).

Nothing in that statutory language suggests that

States may apply workers’ compensation laws that discriminate against the federal government. The most

natural way for a State to treat a federal facility “as if ”

it were on non-federal land is to “apply” to the federal

facility the same workers’ compensation laws that apply

to non-federal facilities. 40 U.S.C. 3172(a). Thus, if a

state workers’ compensation law applies equally to all

private employees, that law could be applied to federal

contract workers at the federal facility. And if a State

has a special workers’ compensation provision for employees who perform particularly hazardous duties, see,

e.g., Wash. Rev. Code Ann. § 51.32.185 (creating distinctive rules applicable to firefighters), that provision

could be applied to federal contract workers who perform those duties at the federal facility. Section 3172(a)

thus strikes a familiar balance between protecting federal prerogatives and allowing States to regulate conduct within their borders “with an even hand.” Dawson,

139 S. Ct. at 703; see, e.g., Travis v. Reno, 163 F.3d 1000,

1002 (7th Cir. 1998) (Easterbrook, J.) (describing the

“rule of nondiscrimination, under which * * * one government may tax (or regulate) another’s trading partners only to the extent it imposes equivalent burdens on

those who do business with private citizens”), cert. denied, 528 U.S. 1114 (2000).

For several decades, courts of appeals have embraced that common-sense understanding of Section

3172(a) and its statutory predecessor. See, e.g., Roelofs

v. United States, 501 F.2d 87, 93 (5th Cir. 1974)

(explaining that the statute “assure[s] privately-employed workers on Federal projects equal treatment

with other industrial laborers in the state”), cert. denied, 423 U.S. 830 (1975). This Court’s decision in Goodyear Atomic reflects the same understanding. There,

the Court considered whether Section 3172(a)’s materially identical predecessor authorized application to a

federal facility of an Ohio workers’ compensation law

that provided supplemental awards for injuries resulting from employers’ safety violations. 486 U.S. at 180183. The Court held that “the phrase ‘workmen’s compensation laws’ ” in Section 3172(a)’s predecessor encompassed “the additional-award provision in Ohio’s

workers’ compensation law.” Id. at 183. The Court observed that the “plain language” of the statute “places

no express limitation on the type of workers’ compensation scheme that is authorized.” Id. at 183, 186. Instead, the Court explained, the statute “compels the

same workers’ compensation award for an employee injured at a federally owned facility as the employee

would receive if working for a wholly private facility.”

Id. at 183-184; accord id. at 185 (“Congress intended

Ohio’s law and others of its ilk * * * to apply to federal

facilities ‘to the same extent’ that they apply to private

facilities within the State”).

That authoritative construction of the statute precludes application of a state workers’ compensation law

that, like HB 1723, “appl[ies] uniquely to the workers of

those with whom the Federal Government deals.” App.,

infra, 10a. By definition, such a law does not provide

“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.” Goodyear Atomic, 486 U.S. at 183-184. Reading

Section 3172(a) to authorize application of such a state

law is thus flatly contrary to Goodyear Atomic.

b. The history of Section 3172(a) reinforces the most

natural understanding of the statutory text. Congress

enacted Section 3172(a)’s predecessor in response to

this Court’s holding in Murray v. Gerrick & Co., 291

U.S. 315 (1934), “that state workers’ compensation laws

may not be applied at all in areas under the exclusive

jurisdiction of the Federal Government.” Goodyear

Atomic, 486 U.S. at 193-194 (White, J., dissenting) (describing the undisputed background of the statute).

“The purpose of the bill” was to prevent “workers employed on federal projects” from being “deprived of the

benefits of [workers’ compensation] coverage purely because of an oddity of location.” Id. at 194.

In particular, the House Report accompanying the

legislation observed that workers building the Golden

Gate Bridge would be excluded from California’s workers’ compensation scheme under Murray v. Gerrick, because some of the construction had taken place on federal land. H.R. Rep. No. 2656, 74th Cong., 2d Sess. 1

(1936). The law that became Section 3172(a) “fill[ed

that] conspicuous gap” by allowing States to apply their

workers’ compensation regimes to federal property.

S. Rep. No. 2294, 74th Cong., 2d Sess. 1 (1936). But

there is no hint in the statutory text, history, or purpose

that Congress—in authorizing application of state

workers’ compensation laws to federal facilities “in the

same way and to the same extent as if the” facilities

were on non-federal land—authorized discrimination

against the United States or the firms that employ federal contract workers. 40 U.S.C. 3172(a) (emphasis

added). Indeed, in the 85 years since the enactment of

Section 3172(a)’s predecessor, it does not appear that

any State or court (other than those in this litigation)

has understood the statute to have that effect.

c. At a minimum, Section 3172(a) does not provide

the “clear and unambiguous” authorization necessary to

waive the United States’ intergovernmental immunity

from discrimination against itself or those with whom it

deals. App., infra, 9a (quoting Goodyear Atomic, 486

U.S. at 180). The requirement of clear and unambiguous authorization follows from the settled principle that

“[w]aivers of immunity must be construed strictly in favor of the sovereign.” United States Dep’t of Energy v.

Ohio, 503 U.S. 607, 615 (1992) (citation and internal quotation marks omitted); see, e.g., Hancock v. Train, 426

U.S. 167, 178-180 (1976) (applying that principle to federal intergovernmental immunity).

A federal law does not contain the clear and unambiguous statement required for a waiver of governmental immunity if “it is plausible to read the statute” in

another way. FAA v. Cooper, 566 U.S. 284, 299 (2012).

As explained above, the most natural reading of Section

3172(a)—and the one this Court adopted in Goodyear

Atomic—is that the statute permits application of state

workers’ compensation laws “to federal facilities ‘to the

same extent’ that they apply to private facilities within

the State.” 486 U.S. at 185. By construing Section

3172(a) to authorize differential treatment of the federal government, the court of appeals read that provision “to mean the exact opposite of what its words” and

this Court’s “directly controlling” decision “say.” App.,

infra, 40a (Collins, J., dissenting from denial of rehearing en banc). At the very least, the construction that

the court below adopted is not one that “the statutory

text clearly requires.” Cooper, 566 U.S. at 299.

3. The court of appeals’ construction of Section 3172(a)

is mistaken

The court of appeals panel held that Section 3172(a)

clearly and unambiguously authorizes Washington to

apply a workers’ compensation law that discriminates

against the United States and the firms with which it

deals. None of the reasons offered by the panel supports that counterintuitive reading.

a. The crux of the panel’s reasoning, amplified by

Judge Smith in his opinion concurring in the denial of

rehearing en banc, is that Section 3172(a) authorizes a

State to apply to a federal facility any workers’ compensation scheme that the State could apply to non-federal

workers at a non-federal facility in the State. App., infra, 16a-18a; see id. at 25a (Smith, J., concurring in the

denial of rehearing en banc). Thus, in the panel’s view,

Section 3172(a) authorizes application of HB 1723’s provisions singling out the United States and its contractors for disparate treatment because “Washington

could enforce a version of HB 1723 that did not involve

the Federal Government and where the Hanford site

were a state project.” Id. at 73a (amended panel opinion); see id. at 18a (initial panel opinion); id. at 25a

(Smith, J., concurring in the denial of rehearing en

banc). That analysis is flawed in multiple respects.

i. First, by looking to hypothetical rather than actual state workers’ compensation laws, the panel’s reading departs from the text of Section 3172(a). Section

3172(a) does not define the powers of the state legislature (or of the state government generally) to enact or

adopt new workers’ compensation laws. Rather, Section 3172(a) is addressed to “[t]he state authority

charged with enforcing and requiring compliance with

the state workers’ compensation laws.” 40 U.S.C.

3172(a). The only “state workers’ compensation laws”

that such administrative officials can “enforc[e] and requir[e] compliance with” are laws that the State has actually adopted. Consistent with that understanding,

Section 3172(a) permits the responsible state authority

to “apply” those laws to federal facilities “in the same

way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” 40 U.S.C.

3172(a). That language reflects a focus on the workers’

compensation regime that actually governs benefits determinations for employees at non-federal facilities

within a particular State, not on the hypothetical laws

that the State might adopt.

In reaching a contrary result, the panel relied heavily on the phrase “as if the premises were under the exclusive jurisdiction of the State.” 40 U.S.C. 3172(a); see

App., infra, 16a-18a; see also id. at 24a-29a (Smith, J.,

concurring in the denial of rehearing en banc). The

panel read that language to mean that “the States” may

exercise the same “broad authority to enact [workers’

compensation] laws” governing federal facilities that

they possess to enact similar laws governing non-federal lands. Id. at 17a. As explained above, however,

Section 3172(a) specifically addresses the powers not of

state legislatures, but of the state administrative officials who “enforc[e] and requir[e] compliance with” existing workers’ compensation laws. The power to “apply” state law that those officials would possess “if the

premises were under the exclusive jurisdiction of the

State,” 40 U.S.C. 3172(a), does not include the power to

promulgate new workers’ compensation laws to govern

federal facilities alone.

For similar reasons, the panel’s construction is inconsistent with the Goodyear Atomic Court’s under-

standing that, under the language of Section 3172(a)’s

materially identical predecessor, “an employee injured

at a federally owned facility” would receive the same

workers’ compensation award “as the employee would

receive if working for a wholly private facility.” 486

U.S. at 184. The panel’s interpretation likewise has no

foundation in the history of the statute. As explained

above, Congress enacted Section 3172’s predecessor to

ensure that federal contract workers on federal property would be covered by the otherwise-applicable state

workers’ compensation scheme—not by a new law created exclusively for them. See p. 20, supra.

ii. Even if Section 3172(a) used as its benchmark the

hypothetical workers’ compensation laws that a State

could adopt, HB 1723 would be invalid. HB 1723 does

not simply mandate differential treatment between

workers at the Hanford facility and workers in other

parts of Washington. Rather, even among Hanford

workers, HB 1723 applies only to “United States department of energy Hanford site workers,” Wash. Rev.

Code Ann. § 51.32.187(1)(b), not to the state and private

employees who perform similar functions at that location. Thus, even with respect to the various categories

of individuals who work at or around the Hanford facility (see p. 4, supra), HB 1723 “discriminate[s] against

the United States or those with whom it deals.” Baker,

485 U.S. at 523. Washington could not permissibly apply such a regime even on non-federal lands.

The panel found it “[c]ritical[]” that the United

States had “conceded during oral argument that Washington could enforce a version of HB 1723 that did not

involve the Federal Government and where the Hanford site were a state project.” App., infra, 73a (emphasis added); see id. at 25a (Smith, J., concurring in the

denial of rehearing en banc); see also Resp. C.A. Br. 19

(contending that, under Section 3172(a), the operative

“question is * * * how the State could regulate [the

facility] if the federal government were taken ‘out of

it’ ”) (citation omitted). But the evident import of that

government concession was simply that, if Washington

were cleaning up radioactive waste at a state facility

without using federal workers, so that no question of intergovernmental immunity was implicated, there would

be no constitutional barrier to the State’s elimination of

usual causation requirements in determining eligibility

for workers’ compensation benefits. That concession

does not imply that disparate treatment of federal and

non-federal workers at a hypothetical state facility

would likewise be permissible.

b. The court of appeals panel offered several other

rationales to support its interpretation of Section

3172(a). See App., infra, 10a-16a. None is persuasive.

i. The panel relied on this Court’s statement in

Goodyear Atomic that Section 3172(a)’s materially

identical statutory predecessor “places no express limitation on the type of workers’ compensation scheme

that is authorized.” 486 U.S. at 183; see App., infra,

10a-13a. As explained above, however, the Court made

that statement in holding that the term “workmen’s

compensation laws” in Section 3172(a)’s predecessor extended beyond “typical” workers’ compensation schemes,

under which injured employees’ benefits awards are

calculated “without regard to the employer’s fault,” to

encompass regimes that authorize enhanced awards for

injuries arising from employers’ safety violations. 486

U.S. at 183. The Ohio workers’ compensation scheme at

issue in Goodyear Atomic applied equally to all facilities

in the State. See id. at 177. Nothing in the Goodyear

Atomic Court’s analysis suggests that Section 3172(a)

would permit a State to adopt and apply workers’ compensation rules that discriminate against the federal

government. To the contrary, the Court’s statement

that Section 3172(a)’s predecessor “compels the same

workers’ compensation award for an employee injured

at a federally owned facility as the employee would receive if working for a wholly private facility,” id. at 183184, reflects the opposite understanding. See p. 19, supra.

ii. The panel’s reliance (see App., infra, 13a-15a) on

the Ninth Circuit’s prior decision in United States v.

Lewis County, 175 F.3d 671, cert. denied, 528 U.S. 1018

(1999), is likewise misplaced. The question in Lewis

County was whether a state property tax that applied

to federal and private farmland, but not to state and local farmland, was permissible under a federal law that

authorized States to tax federal farmland “in the same

manner and to the same extent as other property is

taxed.” 7 U.S.C. 1984. The Lewis County panel held

that the tax did not impermissibly discriminate against

the federal government because (1) it was imposed on

all farmland except state and local farmland, and (2) requiring state and local governments to “engage in a circular process of taxing themselves” would serve no useful purpose. 175 F.3d at 676. The panel also noted that

the State’s imposition of the tax “on privately-owned

farmland in general” provided “a political check against

excessive taxation.” Ibid.

Unlike the state tax law at issue in Lewis County,

HB 1723 does not apply to “privately-owned [land]” or

to private employees “in general,” 175 F.3d at 676, but

only to “United States department of energy Hanford

site workers,” Wash. Rev. Code Ann. § 51.32.187(1)(b).

HB 1723 therefore does not provide a “political check”

against discriminatory or excessive regulation of federal facilities. Lewis County, 175 F.3d at 676. Nor is

there any pointless-circularity justification (or any

other valid rationale) for exempting state employees

from HB 1723. See ibid. Nothing in Lewis County suggests that a State may target federal operations in the

manner that HB 1723 prescribes.

iii. The panel cited two other federal statutes that it

viewed as prohibiting discrimination against the federal

government more clearly than does Section 3172(a).

App., infra, 15a-16a & n.7; see 4 U.S.C. 111(a) (authorizing States to tax the “pay or compensation” of federal

officers and employees “if the taxation does not discriminate against the officer or employee because of the

source of the pay or compensation”); 42 U.S.C.

9620(a)(4) (waiving the federal government’s immunity

from certain state environmental standards or requirements, but specifying that the waiver “shall not apply”

to state standards or requirements that are “more stringent than” those that the State imposes on non-federal

facilities). The panel surmised that Congress would

have used similar language in Section 3172(a) if it had

intended to foreclose state laws like HB 1723. See App.,

infra, 15a, 16a. That analysis is misconceived.

It is not apparent that the language used in those

statutes prohibits discrimination against federal actors

any more clearly than does Section 3172(a), which authorizes state enforcement personnel to apply workers’

compensation laws to federal facilities only “in the same

way and to the same extent as if the premises were under the exclusive jurisdiction of the State.” But even if

Section 3172(a) is viewed as less explicit on this point

than the statutes cited by the panel, that does not mean

that Section 3172(a) clearly and unambiguously authorizes discrimination, as is necessary for a waiver of

intergovernmental immunity. See Goodyear Atomic,

486 U.S. at 180. As the dissenting judges below succinctly explained, the panel’s analysis “flips the governing canon of construction on its head.” App., infra, 55a.

B. This Court’s Review Is Warranted

The Ninth Circuit’s error warrants this Court’s review. The panel’s construction of Section 3172(a) conflicts with this Court’s interpretation of materially identical statutory language in Goodyear Atomic. See Sup.

Ct. R. 10(c). And the panel’s decision implicates fundamental constitutional principles, exposes the United

States to substantial costs, and provides a roadmap for

even more sweeping discrimination against the federal

government. All of those grounds support this Court’s

intervention.

1. The court of appeals’ decision is inconsistent with

the understanding of Section 3172(a)’s materially identical statutory predecessor that this Court expressed in

Goodyear Atomic. As explained above, the Goodyear

Atomic Court read that prior law to “compel[] 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.” 486 U.S.

at 183-184. HB 1723 does not provide “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,” ibid., because

the only employees covered by HB 1723 are “United

States department of energy Hanford site workers,”

Wash. Rev. Code Ann. § 51.32.187(1)(b). Under a

straightforward application of this Court’s decision in

Goodyear Atomic, the court of appeals was thus “un-

ambiguously required * * * to strike down the Washington statute.” App., infra, 40a (Collins, J., dissenting

from denial of rehearing en banc).

The court of appeals viewed this Court’s decision in

Goodyear Atomic as supporting the panel’s position.

See App., infra, 10a-13a; see also id. at 30a-33a (Smith,

J., concurring in the denial of rehearing en banc). As

explained above, the panel’s affirmative reliance on

Goodyear Atomic rests on a “flagrant misreading of ”

this Court’s decision. Id. at 46a (Collins, J., dissenting

from denial of rehearing en banc); see pp. 25-26, supra.

At a minimum, the sharp dispute about the meaning of

the Court’s leading precedent in this area of law illustrates the need for further review.

2. The question presented is sufficiently important

that it would warrant this Court’s review even in the absence of a direct conflict.

a. The principle of intergovernmental immunity is

central to the structure of the federal system. See, e.g.,

McCulloch, 17 U.S. (4 Wheat) at 427. HB 1723’s imposition of increased costs on the United States and the

firms that directly employ federal contract workers embodies precisely the “mistreatment of the Federal Government against which the Supremacy Clause protects.” Washington, 460 U.S. at 542. The panel’s holding that Congress “greenlighted such open and explicit

discrimination against the Federal Government” is an

“astonishing” and “unprecedented” result. App., infra,

38a-39a (Collins, J., dissenting from denial of rehearing

en banc). Indeed, “[u]ntil the panel’s opinion in this

case, no federal court in the more than 200 years since

Chief Justice John Marshall’s landmark decision in

McCulloch v. Maryland, has ever upheld a state statute

that explicitly strikes at the Federal Government in the

sort of extraordinary and egregious way that Washington has done here.” Id. at 38a (citation omitted). That

profound error on a matter of exceptional importance

warrants this Court’s review.

b. The financial stakes for the federal government

are substantial. HB 1723 already applies to at least

100,000 federal contract workers who have performed

services at the Hanford site since 1943, and the Hanford

cleanup is expected to last “at least six more decades.”

App., infra, 2a; see id. at 7a. By creating a presumption

of workplace connection for a wide range of common

diseases—a presumption that is triggered by a single

eight-hour shift at Hanford and applies throughout a

worker’s lifetime (and that may be invoked by a covered

worker’s survivors after the worker’s death)—HB 1723

lays the groundwork for extensive liability.

In the year after HB 1723 took effect, the number of

cancer claims received by DOE jumped from a historical average of five per year to more than 50. C.A. E.R.

134. A total of 92 claims that year invoked the HB 1723

presumption. Ibid. While almost all those claims would

previously have been denied, 31 of the first 41 that DOE

processed were submitted stating that the claim met the

requirements of HB 1723, and the State approved eight

of the ten claims that DOE recommended for denial.

Ibid. In 2019, Washington amended HB 1723 to eliminate the requirement of a pre-employment medical examination for certain cancer claims. See House Bill

1490, 66th Leg., Regular Sess. (Wash Rev. Code Ann.

§ 51.32.187(4)(a)). And under the Ninth Circuit’s decision, nothing stops the State from further increasing

this discriminatory burden on the federal government.

Although estimating the total cost is “extremely difficult,” C.A. E.R. 133, the Washington Department of

Labor and Industries has projected that at least 4000

new claims will be filed seeking retroactive application

of HB 1723, see id. at 103. Many of those will be complex claims, the costs of which “could easily exceed a

million dollars per claim.” Id. at 134. And thousands

more claims likely will be filed in the future, potentially

continuing into the 22nd century.

c. The implications of the Ninth Circuit’s decision

extend well beyond the Hanford site. Section 3172(a)

applies broadly to “all [federal] land and premises” and

to “all [federal] projects, buildings, constructions, improvements, and property” in a State. The panel’s holding thus provides States throughout the Ninth Circuit

with “carte blanche to impose whatever special workers’

compensation rules they want on the United States and

its contractors.” App., infra, 39a (Collins, J., dissenting

from denial of rehearing en banc). The federal properties potentially affected by such a rule include military

bases, national parks, DOE laboratories and nuclear

sites, and numerous other facilities where federal contract workers perform arguably hazardous tasks. See,

e.g., DOE, Cleanup Sites, https://www.energy.gov/em/

cleanup-sites (map showing DOE cleanup sites); U.S.

Army Corps of Engineers, Formerly Used Defense Sites,

https://www.usace.army.mil/Missions/Environmental/

Formerly-Used-Defense-Sites/FUDS-GIS/House (map

showing formerly used defense sites, many of which are

subject to cleanup). The prospect that other States will

target federal operations for similar discrimination

counsels in favor of this Court’s review.

In addition, other federal statutes include similar

language allowing States to apply their own laws to the

federal government or federal contract workers “in the

same way and to the same extent” as the law is applied

to others. See, e.g., 49 U.S.C. 5126 (providing that “person[s] under contract with” the federal government to

transport hazardous materials are subject to state regulation “in the same way and to the same extent that

any person” is regulated); 16 U.S.C. 835c-1(b) (authorizing state taxation of lands acquired by the United

States as part of the Columbia Basin Project “in the

same manner and to the same extent as privately owned

lands of like character”). The Ninth Circuit’s reasoning

implies that those statutes too would permit application

of state laws that discriminate against the United

States. Those “very sweeping implications” of the panel

decision, App., infra, 56a (Collins, J., dissenting from

denial of rehearing en banc), provide a further reason

for this Court to grant review.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

BRIAN H. FLETCHER

Acting Solicitor General

BRIAN M. BOYNTON

Acting Assistant Attorney

General

MALCOLM L. STEWART

Deputy Solicitor General

CHRISTOPHER G. MICHEL

Assistant to the Solicitor

General

MARK B. STERN

JOHN S. KOPPEL

Attorneys

SEPTEMBER 2021

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 19-35673

D.C. No. 4:18-cv-05189-SAB

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

STATE OF WASHINGTON; JAY ROBERT INSLEE, IN HIS

OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF

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

Argued and Submitted: July 6, 2020

Seattle, Washington

Filed: Aug. 19, 2020

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

OPINION

(1a)

Before: RICHARD R. CLIFTON and MILAN D. SMITH,

JR., Circuit Judges, and JAMES DONATO,* District Judge.

Opinion by Judge MILAN D. SMITH, JR.

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 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 (cod-

The Honorable James Donato, United States District Judge for

the Northern District of California, sitting by designation.

ified 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 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

Factual Background

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

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.”

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.

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. § 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

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

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 within the state. 3 Wash. Rev.

Code § 51.12.060. Thus, employees of DOE contractors and subcontractors at the Hanford site may pursue

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.

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.

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

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.

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 hun-

dred 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.

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).

“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 lands owned by the Bonneville Power Administration, which is

owned by the United States[.]” Wash. Rev. Code § 51.32.187(1)(a).

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 nonfederal employees to address 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

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 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. KerrMcGee 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

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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 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

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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 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

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.

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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 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.

There are some differences between § 3172 and its predecessor.

Unlike its predecessor, § 3172 does not refer to “workmen’s 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.”).

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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 18385. But the Court did not purport to impose the limitation on the statute that the United 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

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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.

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

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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

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

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 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.

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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 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

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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 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.

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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.

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.

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.

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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 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

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/compliance/charts/hanford.htm.

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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.

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APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 19-35673

D.C. No. 4:18-cv-05189-SAB

UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT

STATE OF WASHINGTON; JAY ROBERT INSLEE, IN HIS

OFFICIAL CAPACITY AS GOVERNOR OF THE STATE OF

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

Argued and Submitted: July 6, 2020

Seattle, Washington

Filed: Aug. 19, 2020

Amended: Apr. 15, 2021

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

ORDER AND AMENDED OPINION

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Before: RICHARD R. CLIFTON and MILAN D. SMITH,

JR., Circuit Judges, and JAMES DONATO,* District Judge.

Concurrence in Order by Judge MILAN D. SMITH,

JR.;

Dissent from Order by Judge COLLINS;

Opinion by Judge MILAN D. SMITH, JR.

ORDER

The court’s opinion filed August 19, 2020, and published at 971 F.3d 856 (9th Cir. 2020), is hereby amended

as follows: on page 19 of the slip opinion, replace “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.” with

“Critically, as it did in the district court, the United

States conceded during oral argument that Washington

could enforce a version of HB 1723 that did not involve

the Federal Government and where the Hanford site

were a state project.” An amended opinion is filed concurrently with this order.

With this amendment, the panel has unanimously

voted to deny the petition for panel rehearing. (Dkt.

37) Judge M. Smith votes to deny the petition for rehearing en banc, and Judge Clifton and Judge Donato so

recommend. (Id.)

The full court has been advised of the petition for rehearing en banc (Id.) A judge requested a vote on

whether to rehear the matter en banc. The matter

The Honorable James Donato, United States District Judge for

the Northern District of California, sitting by designation.

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failed to receive a majority of the votes of the nonrecused active judges in favor of en banc reconsideration. Fed. R. App. P. 35(f ).

The petition for rehearing en banc is DENIED. No

subsequent petitions for panel rehearing or rehearing

en banc shall be permitted. Judge M. Smith’s concurrence with and Judge Collins’s dissent from the denial

of rehearing en banc are filed concurrently herewith.

M. SMITH, Circuit Judge, concurring in the denial of rehearing en banc:

Despite the overwhelming rejection by our court of

his en banc call in this case, my dissenting colleague continues to speak of this rather straight-forward statutory

construction case in apocalyptic terms. Because of his

extensive use of hyperbole, coupled with the fact that his

claims were not asserted or addressed in our opinion, I

briefly respond to my colleague’s contentions in this concurrence so they will be appropriately challenged.

Briefly stated, Judge Collins disregards the plain text of

§ 3172(a) and misreads the relevant precedents. In

contrast, our decision does nothing more than apply the

full text of the federal statute at issue and correctly apply the relevant case law. For that reason, I concur in

the court’s denial of rehearing en banc.

As Judge Collins notes, “whether the Washington

statute is valid turns solely on whether it is authorized

by § 3172(a).” Dissent at 23. “Statutory interpretation,

as we always say, begins with the text.” Ross v. Blake,

136 S. Ct. 1850, 1856 (2016); see also Medina Tovar v.

Zuchowski, 982 F.3d 631, 640 (9th Cir. 2020) (Collins, J.,

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concurring in the judgment) (“As with any question of

statutory interpretation, we must ‘begin with the text of

the statute.’ ” (quoting Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 7 (2011)). Curiously,

Judge Collins does not begin with the complete text of

§ 3172(a).

Subsection 3172(a) provides:

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) (emphasis added). The phrase at

issue in this case is: “in the same way and to the same

extent as if the premises were under the exclusive jurisdiction of the State.” Id.

Judge Collins focuses only on the first part of the italicized text: “in the same way and to the same extent.”

According to my dissenting colleague, “Washington has

fashioned specially tailored rules that apply to the federal Hanford facility in a different way, and that impose

liability to a different extent, than Washington does with

any premises ‘under the exclusive jurisdiction of the

State.’ ” Dissent at 24.

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This reading ignores the latter part of the italicized

text: “as if the premises were under the exclusive jurisdiction of the State.” Subsection 3172(a) does not

require that state governments enact the exact same

workers’ compensation scheme for state-owned and

federally-owned property. Instead, a state may enact

a workers’ compensation scheme for federally-owned

property as long as it could enact the same scheme “in

the same way and to the same extent” if the property

were under the jurisdiction of the state.

As we note in the amended opinion, “the United

States conceded during oral argument that Washington

could enforce a version of HB 1723 that did not involve

the Federal Government and where the Hanford site

were a state project.” Amended Slip Op. at 53. If the

Hanford site were under the control of the state government, Washington could apply this workers’ compensation scheme to employees and contractors from that hypothetical site. 1 Subsection 3172(a) “removes federal

jurisdiction as a barrier to a state’s authority over workers’ compensation laws for all who are located in the

state.” Washington, 971 F.3d at 865. If Washington

could apply a version of HB 1723 to a hypothetical stateowned Hanford site, it can do so for a federally-owned

Hanford site. This shows that Washington is applying

A state workers’ compensation scheme is, of course, “[s]ubject to

[other] constitutional constraints,” such as the due process and equal

protection clauses, but “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.” Washington, 971 F.3d at 865

(citing Weber v. Aetna Cas. & Sur. Co., 406 U.S. 164, 172 (1972)).

However, only the intergovernmental immunity doctrine is at issue

in this case.

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HB 1723 “as if [the Hanford site] were under the exclusive jurisdiction of the State.” 40 U.S.C. § 3172(a).

If the United States can show that a state applied a

workers’ compensation scheme to federally-owned property but could not apply that same scheme to similarlysituated state-owned property “in the same way and to

the same extent,” such a scheme would not be protected

by § 3172(a). For example, imagine that both Washington and the Federal Government operate public

parks within the physical boundaries of the state. For

reasons unknown (perhaps because of climate change,

perhaps because of an increase in the number of picnic

baskets in the parks), bear attacks dramatically rise in

both federal and state parks. Washington recognizes

that these increased bear attacks are a problem for park

rangers in both types of parks and enacts the following

amendment to its workers’ compensation scheme:

“Each time a park ranger in a state park is injured by a

bear, that ranger shall receive compensation of $100.

Each time a park ranger in a federal park is injured by

a bear, that ranger shall receive compensation of

$1,000,000.” However, the Washington Constitution

also contains a provision stating that “workers’ compensation payments to state employees may not exceed

$100,000.”

That new statutory provision would violate the intergovernmental immunity doctrine and would not be protected by § 3172(a) because, in this scenario: (1) the

Federal Government can show that Washington is applying a worker’s compensation scheme in a different

manner and to a different extent against federal employees; and (2) Washington could not apply the $1,000,000

payment scheme to state park rangers because the

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Washington Constitution forbids it. Thus, the $1,000,000

payment provision could not be applied “in the way and

to the same extent as if the premises were under the exclusive jurisdiction of ” Washington. Contrary to my

dissenting colleague’s assertion, our reading of the statute does not “ignore[]” the words “in the same way and

to the same extent” and “effectively read[ that phrase]

out of the statute.” Dissent at 32. Our reading of the

statute gives meaning to “every word Congress used.”

Reiter v. Sonotone Corp., 442 U.S. 330, 339 (1979).

Judge Collins’s reading of the statute violates the

basic canon of statutory construction that we must “construe what Congress has written. After all, Congress

expresses its purpose by words. It is for us to ascertain

—neither to add nor to subtract, neither to delete nor to

distort.” 62 Cases, More or Less, Each Containing Six

Jars of Jam v. United States, 340 U.S. 593, 596 (1951).

My dissenting colleague argues that the phrase “as if

the premises were under the exclusive jurisdiction of the

State” instead “provides the baseline for comparison in

applying the statute’s non-discrimination principle.”

Dissent at 33 (emphasis in original).

Judge Collins puts the cart before the horse. He

discusses § 3172(a)’s alleged “non-discrimination” or

“anti-discrimination” principle numerous times in his

dissent. See Dissent at 28, 30, 30-31, 31-32, 33, 34, 36.

However, neither Goodyear nor Lewis County stand for

the proposition that § 3172(a) requires that a state pass

identical workers’ compensation schemes for federal

and non-federal facilities. I agree that a state cannot

apply a scheme to the federal facility that it could not

apply to a non-federal facility. In that sense, it could be

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said that § 3172(a) contains a “non-discrimination principle.” To Judge Collins, however, Goodyear and

Lewis County forbid a state from passing different

workers’ compensation schemes for different types of

facilities, even if those schemes could be applied to nonfederal facility, in line with the plain text of the statute.

Perhaps Judge Collins is hoping that by repeating

the phrase “non-discrimination principle” over and over

that his interpretation of the statute will become true.

But alas, that is not the case. The only way my dissenting colleague can give meaning to the phrase “as if the

premises were under the exclusive jurisdiction of the

State” is by first by reading his extra-textual version of

the “non-discrimination principle” into the statute, and

then by attempting to show that the phrase is about applying this concocted principle. Judge Collins’s interpretation is “an unreasonably narrow and atextual reading of the statutory exception.” Szonyi v. Barr, 942

F.3d 874, 887 (9th Cir. 2019) (Collins, J., dissenting from

denial of rehearing en banc), cert. denied, 141 S. Ct. 444

(2020).

We read the phrase simply according to its plain language: if a state can apply a workers’ compensation

law to premises under its own exclusive jurisdiction,

then it can apply that same law to premises under federal jurisdiction. Neither my dissenting colleague nor

the United States question that Washington could apply

the protections in HB 1723 to a facility owned by the

State of Washington. In fact, as highlighted above, the

United States conceded at oral argument that Washington could apply a version of HB 1723 to a state-owned

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Hanford-like facility. 2 Thus, it is only our reading that

gives content to each and every word of § 3172(a), and

it is only our reading that conforms to the statute’s plain

text. 3

My dissenting colleague further argues that our “reliance on

hypothetical laws is also refuted by the statutory text, which says

that the state agency charged with enforcing ‘the state workers’

compensation laws’ may apply ‘the laws’ to federal property as

specified.” Dissent at 34 (quoting 40 U.S.C. § 3172(a)). This argument fails. Washington is applying HB 1723, which is an amendment to the Washington Industrial Insurance Act, the state’s workers’ compensation scheme. See Washington, 971 F.3d at 859-60.

To the extent Judge Collins contends that we cannot compare HB

1723 to a hypothetical state law that would violate § 3172(a), Congress’s decision to use the phrase “as if ” clearly refutes that premise. “As if ” commands us to imagine that the Hanford site were

under Washington’s exclusive jurisdiction and to determine whether

Washington could extend the protections of HB 1723 to that hypothetical site.

Judge Collins only briefly attempts to refute the comparison between § 3172(a) and other statutes in which Congress has waived

intergovernmental immunity, namely 42 U.S.C. §9620(a)(4) and 4

U.S.C. § 111. See Washington, 971 F.3d at 864 & n.7; Dissent at 3536. As the Supreme Court has instructed, we bolstered our interpretation of § 3172(a) by comparing it to other statutes waiving intergovernmental immunity. See Breuer v. Jim’s Concrete of Brevard, Inc., 538 U.S. 691, 694-97 (2003). From both 42 U.S.C.

§ 9620(a)(4) and 4 U.S.C. § 111, it is clear that “[w]hen Congress has

wished to” codify a nondiscrimination rule in a waiver of intergovernmental immunity, “it has shown itself capable of doing so in unmistakable terms.” Breuer, 538 U.S. at 697 (citation and internal

quotation marks omitted). Congress did not use similar language

in § 3172(a).

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My dissenting colleague opines that we erred in applying Goodyear and Lewis County. Respectfully, we

did not.

In Goodyear, the Supreme Court handed down a

broad holding:

Section 290 provides that a state authority charged

with enforcing “workmen’s compensation laws,” which

in Ohio is the Industrial Commission, “shall have the

power and authority to apply such laws” to federal

premises “in the same way and to the same extent as

if said premises were under the exclusive jurisdiction

of the State.” This language places no express limitation on the type of workers’ compensation scheme

that is authorized.

486 U.S. at 183 (emphasis added) (footnote omitted).

To Judge Collins, “the Government’s argument [in

Goodyear] was that Congress had imposed an additional limitation on the application of state workers’

compensation laws, beyond the requirement that they

be applied in a non-discriminatory fashion.” Dissent at

26. But where, one might ask, did the Supreme Court

interpret § 290, the predecessor to § 3172(a), to require

the non-discrimination principle proposed by Judge Collins?

My dissenting colleague is correct that pursuant to

the Ohio scheme at issue in Goodyear, the Federal Government and private employers were subject to the

same scheme. See Dissent at 26. The Court highlighted this fact. See Goodyear, 486 U.S. at 183-85.

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The Court did not encounter a scenario like the one with

HB 1723 because the Ohio statute was generally applicable. Thus, it would make sense for the Court to note

that the state statute at issue was applicable to private

and federal employers alike.

Because the Ohio statute in Goodyear was dissimilar

to HB 1723, the Court’s notation of the general applicability of the statute is not controlling in this case. 4

Judge Collins writes that “[t]here is not much ambiguity

about [the Goodyear] holding.” Dissent at 25. But

the Court’s notation that the Ohio statute was generally

applicable was not part of the holding in Goodyear, as

even Judge Collins acknowledges. See Dissent at 26

(noting that the issue in Goodyear was not whether the

statute was generally applicable, but instead whether

§ 290 limited the type of workers’ compensation laws).

The Court never explicitly disavowed a scheme that applied only to a federal facility “as if the premises were

under the exclusive jurisdiction of the State,” and where

that scheme could be applied “in the same way and to

the same extent.” 40 U.S.C. § 3172(a). In other words,

per the Supreme Court’s interpretation, the statute

does not require that the state law be generally applicable. The Court did not hold that the statute contains

Judge Collins’s alleged non-discrimination principle. 5

We acknowledged the differences between Goodyear and the instant case in the opinion. See Washington, 971 F.3d at 863 (“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.”).

Judge Collins nonetheless alleges that the Supreme Court did

require a non-discrimination principle by writing, “On its face, § 290

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What is applicable from Goodyear, however, is the

Court’s broad language interpreting the predecessor to

§ 3172(a). The Court wrote that the federal waiver of

intergovernmental immunity “places no express limitation on the type of workers’ compensation scheme that

is authorized.” Goodyear, 486 U.S. at 183 (emphasis

added). This broad pronouncement immediately followed the Court quoting the “in the same way and to the

same extent as if said premises were under the exclusive

jurisdiction of the State” language. See id. HB 1723 is

a “type of workers’ compensation scheme.” Id. (emphasis added); see Type, Merriam-Webster.com Dictionary (“a particular kind, class, or group”). HB 1723 is

“a particular kind, class, or group” of workers’ compensation scheme, in that it particularly applies to the class

compels the same workers’ compensation award for an employee injured at a federally owned facility as the employee would receive if

working for a wholly private facility.” Goodyear, 486 U.S. at 183-84;

see Dissent at 28. I have no qualms with the idea that a state must

apply a workers’ compensation scheme “in the same way and to

the same extent” to workers at a private facility, but that state must

do so only in comparison such a private facility “as if th[ose] premises

were under the exclusive jurisdiction of the State.”

40 U.S.C.

§ 3172(a).

As I note above, as long as a state could apply the same

workers’ compensation scheme to a facility under its exclusive jurisdiction, that scheme is authorized by § 3172(a) if applied to a

federal facility. In such an instance, a worker at a federal facility

“would receive” the same compensation award at “a wholly private

facility” if the state decided to apply that particular scheme to private facilities. Goodyear, 486 U.S. at 18 (emphasis added). My

dissenting colleague’s arguments to the contrary are incorrect. See

Dissent at 34-35 & n.3. In the case of HB 1723, Washington did not

extend those particular protections to private facilities, but as the

Federal Government conceded, and as I noted above, there is little

doubt that Washington had the power to enact a version of HB 1723

for a facility under its exclusive jurisdiction.

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of workers at the Hanford site.

opinion:

As we stated in the

[T]he Court did not purport to impose the limitation

on the statute . . . ; indeed, the Court recognized

that the statute placed no express limitation on permissible workers’ compensation laws. We cannot

properly construe § 3172 in a way that would conflict

with that understanding of a materially identical statutory provision.

Washington, 971 F.3d at 863. Thus, while Goodyear

did not involve the exact scenario presented here, the

Supreme Court’s broad interpretation of § 3172(a)’s predecessor is binding on our court.

Judge Collins also mischaracterizes Lewis County.

As it was in Goodyear, the state provision at issue in

Lewis County was applied to the Federal Government

and private parties. We stated, “It is also worth noting

that the County’s tax on [federally]-owned farmland is

also imposed on privately-owned farmland in general.”

Lewis Cnty., 175 F.3d at 676. Thus, “Lewis County

taxed private farmland to the same extent, and in the

same manner, as it taxed [federal] farmland.” Id.

As Judge Collins acknowledges, the Federal Government “argued that Washington engaged in impermissible discrimination against the Federal Government by

exempting state and local government property from

the property tax.” Dissent at 29; see also Lewis Cnty.,

175 F.3d at 675 (noting that the Federal Government argued that “because Lewis County may not tax . . .

any . . . state or local government property, the

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County may not tax property held by the” Federal Government).

By ruling in favor of Washington in Lewis County,

we explicitly rejected that the statute in question, 7

U.S.C. § 1984, contained a non-discrimination principle

when comparing state and federal property. In fact,

we noted that “Washington’s tax scheme undeniably

discriminates between farmland that is held by the

[Federal Government] and farmland that is similarly

held by the state” because “[s]tate and local governments have traditionally exempted themselves from

state and local taxation.” Lewis Cnty., 175 F.3d at 675

(emphasis added).

This undeniable discrimination

was not dispositive, showing that there was no nondiscrimination principle built into the statute, at least

when it came to comparing state and federal property.

To Judge Collins, Lewis County embedded a nondiscrimination principle in § 1984 because we noted that

Washington “taxed [federal] property just as it taxed

other non-exempt property,” i.e., private property. Id.

However, that Washington also taxed private property

was not central to our holding. See id. at 676 (“It is also

worth noting. . . . ”). Once again, Judge Collins

seeks to convert dicta into binding precedent.

In Lewis County, we also remanded a particular

claim to the district court to determine whether Lewis

County “discriminated against the United States in the

establishment or implementation of its rules” by classifying three individual federal parcels as non-agricultural

and taxing those parcels at a higher rate than the other

federal parcels, which Lewis County classified as

agricultural. Id. at 678-79. Section IV of the Lewis

County decision did not interpret § 1984 to require non-

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discrimination when comparing state and federal property. So while Judge Collins is technically correct that

Lewis County remanded a claim for the district court to

determine if the United States faced discrimination, the

discrimination in question pertained only to whether

Lewis County “establish[ed] or implement[ed] . . .

its [own] rules” concerning the classification of agricultural vs. non-agricultural land in a way that discriminated against the United States. Section IV of Lewis

County did not remand the case for the purpose of applying a non-discrimination principle in comparing state

and federal property.

Both Lewis County and this case hinged on whether

the state could treat the federally-run entities differently from state-run entities. In Lewis County, we interpreted the phrase “other property” not to include

state-owned property, based on a congressional understanding that states had typically exempted themselves

from taxation. See 175 F.3d at 675-76. In Washington, § 3172(a)’s language “as if the premises were under

the exclusive jurisdiction of the State” qualifies the “in

the same way and to the same extent” language to allow

Washington to pass a particular scheme for federal employees and contractors, as long as it could apply a similar scheme to a Hanford-type facility under its own jurisdiction.

III

While Judge Collins cites McCulloch v. Maryland, 17

U.S. (4 Wheat.) 316 (1819) to argue that the sky is figurately falling, the circumstances in this case could not be

more different than those in McCulloch. In refusing to

allow Maryland to tax the Second Bank of the United

States into oblivion, Chief Justice Marshall knew the

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enormous consequences at stake. The Second Bank’s

continued existence would determine whether the Nation could wage war in the future, as it was the

“calamit[y]” of fighting the War of 1812 without a national bank that “led the administration to propose that

Congress charter” that institution. Robert J. Reinstein, The Limits of Congressional Power, 89 Temp. L.

Rev. 1, 67 (2016). This case, in contrast, is about

whether a single state can employ a unique workers’

compensation scheme to a federal nuclear facility that

has no equal. See Washington, 971 F.3d at 858 (noting

that “the Hanford site produced nearly two-thirds of the

nation’s weapons grade plutonium for use . . . during World War II and the Cold War” and that the site’s

“cleanup is . . . ‘unprecedented in its scale and complexity’ ”). A suggestion that HB 1723 will result in the

elimination of the Hanford site, or will prevent the Federal Government from operating within the boundaries

of the State of Washington, is “too obvious[ly]” false to

be accepted. McCulloch, 17 U.S. at 427.

* * *

“[W]hen Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”

Bostock v. Clayton Cnty., Ga., 140 S. Ct. 1731, 1747

(2020). The waiver of intergovernmental immunity in

§ 3172(a) is broad. The Supreme Court told us as much

when it interpreted the provision to “place[] no express

limitation on the type of workers’ compensation scheme

that is authorized.” Goodyear, 486 U.S. at 183. Judge

Collins might disagree with the scope of § 3172(a)’s

waiver, but that was a policy decision made by Congress.

If Congress wishes to restrict the waiver of intergovernmental immunity in § 3172(a) to forbid state laws like

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HB 1723, it obviously may do so. However, we cannot

properly restrict a waiver Congress has chosen not to

restrict. In this case, we applied the law as written.

Nothing more. Nothing less. For that reason, I concur in the denial of rehearing en banc.

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COLLINS, Circuit Judge, with whom CALLAHAN, BENNETT, and BRESS , Circuit Judges, join, dissenting from

the denial of rehearing en banc:

Until the panel’s opinion in this case, no federal court

in the more than 200 years since Chief Justice John

Marshall’s landmark decision in McCulloch v. Maryland, 17 U.S. 316 (1819), has ever upheld a state statute

that explicitly strikes at the Federal Government in the

sort of extraordinary and egregious way that Washington has done here. The panel’s unprecedented decision

is all the more remarkable because it flouts a directly

controlling decision of the U.S. Supreme Court that required the opposite result. We should have reheard

this case en banc.

The panel’s decision upholds a 2018 Washington statute that explicitly imposes a uniquely permissive regime

of retroactive workers’ compensation liability in favor of

any person who worked “either directly or indirectly, for

the United States” in connection with the “Hanford nuclear site,” a decommissioned federal facility in Washington State. Wash. Rev. Code § 51.32.187(1)(b) (emphasis added). Under these special rules, any such

Hanford worker who develops certain enumerated diseases is presumed to have a work-related “occupational

disease” entitling him or her to a workers’ compensation

award, subject to rebuttal only by clear and convincing

evidence. These facially discriminatory standards apply retroactively, even to the point of explicitly allowing

previously denied claims to be reopened under these

new, more claimant-friendly standards. These tailormade workers’-compensation rules bear no resemblance

to the normal ones that apply to employees at any other

facility in Washington State.

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The panel conceded that, absent “clear and unambiguous” congressional authorization for such blatant facial

discrimination against the Federal Government, Washington’s law would violate the long-established doctrine

of intergovernmental immunity.

United States v.

Washington, 971 F.3d 856, 861 (9th Cir. 2020); see also

Boeing Co. v. Movassaghi, 768 F.3d 832, 839 (9th Cir.

2014); see generally McCulloch, 17 U.S. at 436. But the

panel then reached the astonishing conclusion that Congress has by statute affirmatively greenlighted such

open and explicit discrimination against the Federal

Government, thereby giving the States carte blanche to

impose whatever special workers’ compensation rules

they want on the United States and its contractors.

The plain language of the federal statute invoked by the

panel decisively refutes this suggestion, because that

statute consents to the application of the “workers’ compensation laws” of a State to employees at federal facilities only “in the same way and to the same extent” as if

the facilities were not under federal jurisdiction. See

40 U.S.C. § 3172(a) (emphasis added). What is more,

in reading this equal-treatment language as somehow

authorizing facial discrimination, the panel defied the

Supreme Court’s decision in Goodyear Atomic Corp. v.

Miller, 486 U.S. 174 (1988). Construing the very same

statute invoked by the panel here, the Supreme Court

held that, “[o]n its face,” the federal statute “compels

the same workers’ compensation award for an employee

injured at a federally owned facility as the employee

would receive if working for a wholly private facility.”

Id. at 183-84 (emphasis added). The whole point of

Washington’s special statute, of course, is not to provide

for “the same workers’ compensation award for an employee” at the Hanford facility “as the employee would

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receive if working for a wholly private facility.” Id.

Goodyear thus unambiguously required this court to

strike down the Washington statute.

Washington may be right in its apparent belief that,

despite having “paid out more than $1.75 billion to Hanford workers,” Washington, 971 F.3d at 866, the Federal

Government has not done right by those workers who

were exposed to nuclear materials at the Hanford facility. But regardless of how noble its intentions are,

Washington lacks any authority to impose special workers’ compensation rules on federal facilities. And we,

in turn, have no authority to construe a statute to mean

the exact opposite of what its words say and no authority

to ignore a directly controlling Supreme Court decision

that proves us wrong.

I respectfully dissent from our refusal to rehear this

case en banc.

The Hanford nuclear site that is the target of Washington’s facially discriminatory law is “a decommissioned federal nuclear production site that sprawls over

more than five hundred square miles in southeastern

Washington State.” 971 F.3d at 858. During its active years from 1944 to 1989, the site generated large

amounts of hazardous waste. Id. Since 1989, the

United States Department of Energy (“DOE”) has overseen cleanup efforts at the Hanford site, “primarily relying on private contractors and subcontractors to perform the actual cleanup work.” Id. In addition to federal contractors and employees, state agencies and private companies also participate in the efforts at and near

41a

the site. The cleanup process is expected to last “for at

least six more decades.” Id.

In 2018, Washington enacted HB 1723, which added

§ 51.32.187 as part of the Washington Industrial Insurance Act (“WIIA”). (WIIA is Washington’s basic workers’ compensation law.) Section 51.32.187 retroactively

imposes a specially crafted set of more claimant-friendly

liability standards only with respect to those persons

who, at any time since 1943, “engaged in the performance of work, either directly or indirectly, for the

United States” at the “Hanford nuclear site” for “at

least one eight-hour shift.” See Wash. Rev. Code

§ 51.32.187(1)(b). The statute does so by creating a

“prima facie presumption”—applicable only to “United

States department of energy Hanford site workers”—

that certain enumerated illnesses are “occupational diseases” under the WIIA. Id. § 51.32.187(2)(a). The occurrence of an “occupational disease,” in turn, automatically entitles the person to “the same compensation

benefits and medical, surgical and hospital care and

treatment as would be paid and provided for a worker

injured or killed in employment under this title.” Id.

§ 51.32.180. The special liability-favoring presumption

created by HB 1723 may be rebutted only “by clear and

convincing evidence.” Id. § 51.32.187(2)(b). The presumption expressly remains operative after the person’s

“termination of service for the lifetime of ” that person.

Id. § 51.32.187(5)(a) (emphasis added). Moreover, the

statute explicitly allows workers or their surviving family members to refile, under these new standards, previously denied claims. Id. § 51.32.187(5)(b).

In response to HB 1723, the United States commenced

this action for declaratory and injunctive relief against

42a

Washington. It alleged that HB 1723 “discriminates

against the Federal Government and directly regulates

it in violation of the doctrine of intergovernmental immunity.” 971 F.3d at 860. On cross-motions for summary judgment, the district court granted summary

judgment for Washington. Id. A panel of this court

affirmed, concluding that, by enacting 40 U.S.C. § 3172,

Congress had provided “clear and unambiguous authorization” for the States to enact facially discriminatory

workers’ compensation rules that impose uniquely burdensome liability regimes only on the Federal Government. Id. at 861 (citations omitted); see also id. at 86166.

Two points of agreement frame the discrete issue

presented by this case. First, the panel did not dispute

—and in light of the applicable precedent could not

dispute—that, under the doctrine of intergovernmental

immunity, “state laws are invalid if they regulate the

United States directly or discriminate against the Federal Government or those with whom it deals . . .

unless Congress provides clear and unambiguous authorization for such regulation.” 971 F.3d at 861 (simplified); see also Goodyear, 486 U.S. at 180 (“It is well

settled that the activities of federal installations are

shielded by the Supremacy Clause from direct state regulation unless Congress provides ‘clear and unambiguous’ authorization for such regulation.”); Boeing Co., 768

F.3d at 836 (invalidating California statute that “mandate[d] more stringent cleanup procedures, not generally applicable within the state, to a particular site

where the federal government undertook to clean up nu-

43a

clear contamination it created”). Second, the only federal statute that Washington claims provides the requisite authorization is 40 U.S.C. § 3172(a). Accordingly,

whether the Washington statute is valid turns solely on

whether it is authorized by § 3172(a). Contrary to what

the panel concluded in its published decision, the text of

§ 3172(a) and controlling precedent all confirm that the

answer is “no.”

Section 3172(a) provides, in its entirety, as follows:

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) (emphasis added). This language

provides no assistance to Washington, because that

State is manifestly not applying its “state workers’ compensation laws” to this particular federal facility “in the

same way and to the same extent” as if it were not a federal facility. See, e.g., Same, Black’s Law Dictionary

(11th ed. 2019) (“Identical or equal; resembling in any

relevant respect”). On the contrary, Washington has

44a

fashioned specially tailored rules that apply to the federal Hanford facility in a different way, and that impose

liability to a different extent, than Washington does with

any premises “under the exclusive jurisdiction of the

State.”

The correctness of this conclusion is confirmed by the

Supreme Court’s controlling decision in Goodyear.

Construing the predecessor version of § 3172(a), which

was then known as § 290, 1 the Court observed that,

“[o]n its face, § 290 compels the same workers’ compensation award for an employee injured at a federally

owned facility as the employee would receive if working

for a wholly private facility.” 486 U.S. at 183-84 (emphasis added). There is not much ambiguity about that

holding, and the panel’s opinion flouts it. Washington’s

facially discriminatory special liability regime for the

benefit of persons who worked “either directly or indirectly[] for the United States” at the Hanford facility,

see Wash. Rev. Code § 51.32.187(1)(b), manifestly does

not provide for “the same workers’ compensation award

for an employee injured” at the Hanford facility “as the

employee would receive if working for a wholly private

facility.” 486 U.S. at 183-84.

So, under the plain text of the statute, and directly

controlling Supreme Court precedent, § 51.32.187 of the

WIIA is not “clear[ly] and unambiguous[ly]” authorized

Former section 290 of Title 40 was renumbered and reworded,

without material substantive change, as part of the formal enactment

and codification of Title 40 in 2002. Prior to then, Title 40 (like

many other current titles of the Code) was an unenacted editorial

compilation of the relevant underlying Public Laws covering the

particular subject of the title. See 1 U.S.C. § 204(a); 2 U.S.C.

§ 285b.

45a

by § 3172(a), and it is therefore invalid.

U.S.at180. This case is that simple.

Goodyear, 486

The panel nonetheless got this straightforward case

wrong by making three serious mistakes.

First, the panel disregarded Goodyear’s controlling

construction of the statutory phrase at issue here.

In Goodyear, the Government contended that § 290

(now § 3172(a)) did not permit Ohio to apply, to a federal

facility, “a state-law workers’ compensation provision

that provides an increased award for injuries resulting

from an employer’s violation of a state safety regulation.” 486 U.S. at 176. In challenging that enhancedaward provision, the Government did not contend that

the provision violated § 290’s requirement that state law

must apply to a federal facility “in the same way and to

the same extent as” a private facility. Indeed, equal

application of Ohio’s generally applicable enhancedaward provision was precisely what the Government in

Goodyear was trying to avoid. Instead, the Government’s argument was that Congress had imposed an additional limitation on the application of state workers’

compensation laws, beyond the requirement that they

be applied in a non-discriminatory fashion. Specifically, the Government asserted that, in authorizing application of state “work[ers’] compensation laws” to federal facilities, Congress in § 290 only meant to authorize

the sorts of provisions contained in a “typical workers’

compensation act, under which workers are automatically entitled to certain benefits when they suffer a workrelated injury, without regard to the employer’s fault.”

46a

Id. at 183 (emphasis added). Because (according to the

Government) Ohio’s enhanced-award provision went beyond such a typical law, that provision did not count as

a “work[ers’] compensation law[]” for purposes of § 290,

despite its even-handed application to federal facilities.

Id. The Court rejected that argument, noting that the

text of § 290 “places no express limitation on the type of

workers’ compensation scheme that is authorized,” and

that similar types of enhanced-award provisions existed

when § 290 was enacted in 1936. Id. at 183-84 (emphasis added). All that is required by § 290, the Court

noted, is that Ohio law provide “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,” and the Ohio statute obviously met that requirement. Id. (emphasis added); see

also id. at 185 (“[I]t is clear that Congress intended

Ohio’s law and others of its ilk . . . to apply to federal facilities ‘to the same extent’ that they apply to private facilities within the State.”).

Seizing on Goodyear’s statement that § 290 (now

§ 3172(a)) places “no express limitation on the type of

workers’ compensation scheme that is authorized,” the

panel held that the Goodyear Court thereby allowed

States to impose a facially discriminatory “type” of

workers’ compensation law. 971 F.3d at 863. That is

a flagrant misreading of Goodyear. The Court’s holding was that the statute did not impose any limitation on

state workers’ compensation laws beyond the requirement that those laws provide “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.” Goodyear, 486 U.S. at

183-84. Thus, Goodyear held that § 290 allows States

47a

to adopt any substantive workers’ compensation system

they like, precisely so long as it is applied in a nondiscriminatory fashion to federal facilities. 2 Id. at 185

(cautioning that the “meaning of ‘work[ers’] compensation laws’ in § 290, of course, is not infinitely elastic”).

The panel’s holding that § 3172(a) contains no antidiscrimination requirement at all is thus directly contrary to the Supreme Court’s decision in Goodyear, as

well as to the statutory text.

The concurrence in the denial of rehearing en banc

only underscores the panel’s indefensible disregard of

Goodyear.

The concurrence mischaracterizes the

Court’s “notation” about equality of treatment between

federal and non-federal facilities as merely a background “fact” about the Ohio law at issue that the Court

“highlighted.” See Concurrence at 12-13. Having

done so, the concurrence then simply dismisses “the

Court’s notation that the Ohio statute was generally applicable” as “not part of the holding in Goodyear ” and

therefore “not controlling in this case.” See id. at 1213. These evasive maneuvers are insufficient to liberate the panel from the binding force of what the Goodyear Court said the statutory language means. When

the Supreme Court tells us that the words of § 3172(a)

“compel[]” the “same” award at a federal facility as

would be received at a “wholly private facility,” see

Accordingly, the concurrence is wrong in making the strawman

argument that this reading of § 3172(a) would “forbid a state from

passing different workers’ compensation schemes for different types

of facilities.” See Concurrence at 9-10. States may apply different

standards to different types of facilities or different types of work,

so long as in drawing these distinctions they do not discriminate

against the Federal Government.

48a

Goodyear, 486 U.S. at 183, we are bound to follow that

construction, whether we like it or not. The panel seriously erred in refusing to follow Goodyear.

Second, the panel held that its reading of § 3172(a)

was supported by our decision in United States v. Lewis

County, 175 F.3d 671 (9th Cir. 1999). See 971 F.3d at 86364. In fact, Lewis County squarely refutes the panel’s

analysis.

At issue in Lewis County was Washington’s property

tax scheme, which taxed federal property “whenever authorized by federal law.” 175 F.3d at 675. Relying on

7 U.S.C. § 1984, Washington extended its property tax

to properties held by the federal Farm Service Agency

(“FSA”), but the FSA brought suit, contending that the

tax was not authorized by § 1984 and that it violated the

doctrine of intergovernmental immunity. Id. at 674.

The wording of § 1984’s authorization of state taxation

was similar to § 3172(a): a State could tax “FSA property only ‘in the same manner and to the same extent as

other property is taxed.’ ” Id. at 675 (quoting 7 U.S.C.

§ 1984). The Government conceded that, except as to

three of the FSA’s parcels, the tax was uniformly applied to FSA property in exactly the same way that it

was applied to private property, but it nonetheless argued that Washington engaged in impermissible discrimination against the Federal Government by exempting state and local government property from the property tax. Id.

We rejected this argument, which impermissibly attempted to rewrite § 1984 as if it required equal treatment with “ ‘other publicly held property,’ ” as opposed

49a

to equal treatment with “ ‘other property.’ ” Id. (emphasis added). We noted that Congress was surely

aware that “states uniformly exempt state and local

property from taxation,” and so the Government’s reading would render § 1984 a dead letter. Id. Moreover,

it would make no sense to insist that state governments

“engage in a circular process of taxing themselves in order to impose the tax on the federal government that

Congress has authorized.” Id. at 676. We therefore

concluded that § 1984’s requirement that the tax be applied “in the same manner and to the same extent as

other property” was satisfied because Washington “taxed

FSA property just as it taxed other non-exempt property,” i.e., private property. Id. at 675.

Noting only that Lewis County authorized a distinction between FSA-owned property and state-owned or

local-government-owned property, the panel claimed

that Lewis County thus imposed no anti-discrimination

requirement at all, and the panel therefore held that the

similarly worded language in § 3172(a) must be read the

same way. See 971 F.3d at 863-64. But as the above

discussion of Lewis County makes clear, the panel’s

reading of that decision is demonstrably wrong. Lewis

County expressly applied a non-discrimination principle, concluding that the comparable language of § 1984

required the State to tax FSA-owned property “just as

it taxed” private property. 175 F.3d at 675; see also id.

at 676 (expressly noting that, because “the County’s tax

on FSA-owned farmland is also imposed on privatelyowned farmland in general,” the State “taxed private

farmland to the same extent, and in the same manner,

as it taxed FSA farmland” (emphasis added)). Indeed,

immediately after quoting the language of § 1984,

50a

the Lewis County court expressly described that language as establishing a non-discrimination requirement:

“Thus, state and local authorities may apply a nondiscriminatory tax to property acquired by the FSA

through loan default.” Id. at 674 (emphasis added).

It simply blinks reality to claim that Lewis County did

not adopt a non-discrimination principle.

Moreover, Lewis County’s non-discrimination discussion included a footnote stating that, in a later section of the opinion, the court addressed the FSA’s further argument that “the state has improperly taxed three

of its farmland parcels at a higher, non-agricultural

rate.” 175 F.3d at 676 n.5 (emphasis added). In the

cross-referenced discussion, Lewis County noted that

the proper classification of the parcels was governed in

the first instance by state law, but it went on to instruct

the district court also to determine, “purely as a matter

of federal law,” “whether the County has discriminated

against the United States in the establishment or implementation of its rules.”

See id. at 679 (emphasis

added). This was not, as the concurrence implausibly

contends, an instruction to determine whether the State

had “discriminated against the United States” by treating the Federal Government differently from itself.

See Concurrence at 16-17. Rather, it was an instruction to determine whether the State had applied the generally applicable state-law classification rules that govern all other parcels in a different way that “discriminated against the United States.” 175 F.3d at 679 (emphasis added). This holding further flatly disproves

the panel’s contention that Lewis County did not adopt

an anti-discrimination requirement. And it makes all

the more troubling the fact that the panel’s opinion in

51a

this case did not acknowledge Lewis County’s antidiscrimination holding.

The concurrence likewise errs in emphasizing Lewis

County’s holding that § 1984 did not forbid discrimination between FSA property and state-owned property.

See Concurrence at 15-16. The concurrence itself provides the reason why that discrimination was not

prohibited: “In Lewis County, we interpreted the

phrase ‘other property’ not to include state-owned property.” See id. at 17 (emphasis added). Thus, the antidiscrimination requirement in the statute—which required that States tax federal property “in the same

manner and to the same extent as other property is

taxed,” see 7 U.S.C. § 1984 (emphasis added)—simply

did not apply to state-owned property. The statute imposed only a requirement of non-discrimination vis-à-vis

private property, and Lewis County noted that that

requirement was satisfied (except as to the one issue it

remanded).

The panel’s elimination of any nondiscrimination requirement from § 3172 thus squarely

conflicts with our decision in Lewis County.

Finally, the panel held that the concluding phrase in

§ 3172(a), which allows workers’ compensation laws to

be applied “as if the premises were under the exclusive

jurisdiction of the State,” grants States plenary authority to enact any such laws they want, including ones that

facially discriminate against the Federal Government.

971 F.3d at 864-65. The panel’s reliance on this phrase

is unavailing, and it provides no basis for evading Goodyear.

52a

Contrary to what the panel held, § 3172(a) does not

“permit the State to apply its workers’ compensation[]

laws to federal land in the State ‘as if’ it were under the

State’s ‘exclusive jurisdiction,’ without exception.”

971 F.3d at 865 (emphasis added). Rather, what the

statute says is that States may only apply their workers’

compensation laws “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) (emphasis

added). The panel’s flawed construction—i.e., that

§ 3172(a) gives the States authority to enact any workers’ compensation laws concerning the Federal Government “without exception”—ignores this italicized phrase

and effectively reads it out of the statute. By construing the statute as granting plenary authority to “apply”

workers’ compensation laws “as if the premises were under the exclusive jurisdiction of the State,” the panel’s

reading gives the phrase “in the same way and to the

same extent” no work to do. That reading is therefore

plainly wrong. See Reiter v. Sonotone Corp., 442 U.S.

330, 339 (1979) (“In construing a statute we are obliged

to give effect, if possible, to every word Congress used.”).

The canon against surplusage applies with special force

here, because the Federal Government’s immunity from

discriminatory treatment can be defeated only by a

“clear and unambiguous authorization” of such discrimination. Goodyear, 486 U.S. at 180 (quotations omitted). A construction that excises part of the statute

cannot possibly be a “clear and unambiguous” reading

of the words.

Contrary to what the concurrence contends, my construction of the statute—which is, of course, the Supreme

Court’s construction in Goodyear—does not render surplusage the phrase “as if the premises were under the

53a

exclusive jurisdiction of the State.” Rather, that phrase

provides the baseline for comparison in applying the

statute’s non-discrimination principle: it means, as

Goodyear confirms, that the State must provide for “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.” Goodyear, 486 U.S. at 183-84 (emphasis added). In other

words, the phrase “as if the premises were under the exclusive jurisdiction of the State” means that the “workers’ compensation laws” of the State are to be applied

without regard to the fact that it is a federal facility.

Washington’s facially discriminatory law, of course,

does the exact opposite.

For similar reasons, the panel was also wrong in suggesting that § 3172(a) only requires equivalence between the state laws applied to a federal facility and the

laws that a State hypothetically could pass in regulating

a non-federal project. See Washington, 971 F.3d at 865

(noting that Washington could pass a similar law to regulate state projects); Concurrence at 7 (insisting that “a

state may enact a workers’ compensation scheme for

federally-owned property as long as it could enact the

same scheme ‘in the same way and to the same extent’ if

the property were under the jurisdiction of the state”).

Such a rule would make no logical sense, because it

would effectively eliminate the non-discrimination requirement: it would allow a State to discriminate

against the Federal Government so long as the State

could have chosen to apply similar rules to other facilities

—in other words, the State may discriminate so long as

the State could have chosen not to discriminate.

54a

The panel’s reliance on hypothetical laws is also refuted by the statutory text, which says that the agency

charged with enforcing “the workers’ compensation

laws” may apply “the laws” to federal property as specified. 40 U.S.C. § 3172(a) (emphasis added). It says

nothing about comparing state laws discriminating

against the Federal Government to the hypothetical laws

that the State could adopt. The concurrence nonetheless insists that the statute’s use of the phrase “as if ”

instructs courts to examine hypothetical laws, see Concurrence at 10 n.2, but that is wrong. What is hypothesized by the use of “as if ” in the statute is only the status of the property and not the laws to be applied to it.

By its plain terms, § 3172(a) instructs a State to apply

“the state workers’ compensation laws”—not some hypothetical law that does not exist—“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)

(emphasis added).

The concurrence relies on a colorful example to explain how the panel decision’s focus on hypothetical

state laws would work, but the example only serves to

underscore the panel’s clear and deeply troubling error.

The concurrence explains that, if the state Constitution

“contains a provision stating that ‘workers’ compensation payments to state employees may not exceed

$100,000,” then a State could not apply a discriminatory

rule that federal park rangers who are attacked by

bears get $1,000,000, because “Washington could not

apply” such a rule “to state park rangers.” See Concurrence at 8-9. The concurrence’s focus on hypothetical state constitutional limits is odd, because the statute

requires that awards against the Federal Government

must be the same “as the employee would receive if

55a

working for a wholly private facility,” Goodyear, 486

U.S. at 183-84 (emphasis added), not what the employee

“could receive” under some hypothetical state law that

does not exist. 3 Moreover, the panel’s hypothetical implies that, absent its mythical state constitutional limit

of $100,000 for workers’ compensation benefits—which,

of course, no State has—then § 3172 would permit a

State to adopt a discriminatory rule in which state park

rangers would receive $100 for a work-related injury

while federal park rangers would receive $1,000,000.

See Concurrence at 8-9 (italicizing the “and” in explaining that the state constitutional limit is loadbearing in

the panel’s hypothetical). This head-snapping suggestion confirms that the panel’s statutory analysis is profoundly flawed.

The concurrence is also wrong in arguing that, had

Congress wanted to prevent States from discriminating

against the Federal Government in their workers’ compensation laws, then it could have chosen different language that would have conveyed that meaning “ ‘in unmistakable terms.’ ” See Concurrence at 11 n.3; see

also Washington, 971 F.3d at 864-65 (making a similar

point). This flips the governing canon of construction

on its head. The question here is not whether § 3172(a)’s

non-discrimination requirement could have been stated

more clearly. The question is, conversely, whether

Congress provided “ ‘clear and unambiguous’ authorization” affirmatively allowing such discrimination.

The concurrence is therefore simply wrong in contending that

Goodyear somehow endorsed the panel’s peculiar position that

§ 3172(a) allows States to do whatever they want to the Federal Government so long as they “could” do the same to a non-federal facility.

See Concurrence at 13 n.5.

56a

Goodyear, 486 U.S. at 180 (emphasis added) (citation

omitted). It did not.

III

The direct financial consequences of the panel’s decision may be substantial, underscoring the importance of

this case. And under the panel’s decision, any State in

the Ninth Circuit is now also presumably free to impose

its own highly burdensome and facially discriminatory

workers’ compensation rules against the Federal Government. The concurrence nonetheless belittles the

impact of the decision, noting that, unlike the Bank of

the United States in McCulloch, no federal entity is

threatened with elimination here. See Concurrence at

17-18. But the fact that the Federal Government in

2021 is large enough to absorb Washington’s substantial

financial hit here does not in any way justify the panel’s

unprecedented betrayal of the bedrock principles established in McCulloch.

Moreover, the implications of the panel’s decision extend well beyond § 3172 and the workers’ compensation

context. As the panel stated in its opinion, “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,” and the

panel held that courts confronting other such statutes

“ought to interpret similar language in the same way,

unless context indicates that they should do otherwise.”

971 F.3d at 864 (citing Lewis County). The panel’s pronouncement that the phrase “in the same way and to the

same extent” should henceforward be construed “to permit a ‘distinction’ based on federal status” could have

very sweeping implications indeed. Many statutes use

57a

the same sort of wording at issue here, including the tax

statute at issue in Lewis County. The panel’s egregious error is one that should have been nipped in the

bud by granting rehearing en banc.

* * *

For the foregoing reasons, I respectfully dissent

from the denial of rehearing en banc.

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 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.

58a

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 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.

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.”

59a

FACTUAL AND PROCEDURAL BACKGROUND

Factual Background

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.

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.

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

60a

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 within the state. 3 Wash. Rev.

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 Un

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