Suggestion of mootness — United States, Petitioner v. Washington, et al.

No. 21-404

In the Supreme Court of the United States

UNITED STATES OF AMERICA,

v.

PETITIONER,

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,

RESPONDENTS.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SUGGESTION OF MOOTNESS

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

noah.purcell@atg.wa.gov

ANASTASIA R. SANDSTROM

Senior Counsel

PETER B. GONICK

Deputy Solicitor General

i

TABLE OF CONTENTS

INTRODUCTION ....................................................... 1

STATEMENT OF THE CASE .................................... 2

A.

Washington Enacted a Law to Facilitate

Compensation for Workers at the

Hanford Nuclear Cleanup Site Who

Suffer Occupational Diseases .......................... 2

B.

Proceedings Before Amendment of

the Statute ........................................................ 6

C.

Washington Amends the Law to

Cover All Workers at All Radiological

Hazardous Waste Sites in Washington ........... 9

ARGUMENT ............................................................. 10

I.

The Court Routinely Dismisses

Cases When Intervening Changes

in Law Make the Question on

Which Certiorari Was Granted Moot ............ 11

II.

Washington’s New Law Makes

This Case Moot ............................................... 14

CONCLUSION .......................................................... 17

ii

TABLE OF AUTHORITIES

Cases

Alvarez v. Smith

558 U.S. 87 (2009) ................................................. 12

Bowen v. Kizer,

485 U.S. 386 (1988) (per curiam) .......................... 13

City of Frederick v. Shankle

367 Md. 5, 785 A.2d 749 (2001) .............................. 4

Diffenderfer v. Cent. Baptist Church of Miami

404 U.S. 412 (1972) (per curiam) .......................... 14

Hall v. Beals

396 U.S. 45 (1969) (per curiam) ...................... 11, 16

Lewis v. Cont’l Bank Corp.

494 U.S. 472 (1990) .................................... 11-12, 16

Linnell v. City of St. Louis Park

305 N.W.2d 599 (Minn. 1981) ................................. 4

New York State Rifle & Pistol Ass’n, Inc. v.

City of New York

140 S. Ct. 1525 (2020) ...................................... 12-14

Reynoldsville Casket Co. v. Hyde,

514 U.S. 749 (1995) ............................................... 15

Sperbeck v. Dep’t of Indus., Lab. & Human Rels.

46 Wis. 2d 282, 174 N.W.2d 546 (1970) .................. 4

U. S. Dep’t of Treasury v. Galioto

477 U.S. 556 (1986) ............................................... 12

U.S. Dep’t of Justice v. Provenzano

469 U.S. 14 (1984) (per curiam) ............................ 13

iii

United Bldg. & Constr. Trades Council v.

Mayor and Council of Camden

465 U.S. 208 (1984) ............................................... 13

United States v. Juv. Male

564 U.S. 932 (2011) (per curiam) .......................... 11

United States v. Microsoft Corp.

138 S. Ct. 1186 (2018) (per curiam) ...................... 13

Constitutional Provisions

U.S. Const. art. III, § 2 ............................................. 11

Statutes

33 U.S.C. § 1402 .......................................................... 9

40 U.S.C. § 3172 ...................................................... 6, 7

40 U.S.C. § 3172(a) ..................................................... 2

2018 Wash. Sess. Laws 226 (ch. 9, § 1) ...................... 4

Wash. Rev. Code § 51.32.185 ...................................... 4

Wash. Rev. Code § 51.32.187(1)(a) (2021) .................. 5

Wash. Rev. Code § 51.32.187(1)(b) (2021) .................. 5

Substitute S.B. 5890, 67th Leg.,

Reg. Sess. (Wash. 2022) ........................... 1, 9-10, 17

Wash. Rev. Code § 51.32.187(2)(a) (2021) .............. 4-5

Substitute H.B. 1723, 65th Leg.,

Reg. Sess. (Wash. 2018) .................. 4-5, 7, 14, 16-17

Ariz. Rev. Stat. § 23-901.01 ........................................ 4

Cal. Lab. Code § 3212 ................................................. 4

Colo. Rev. Stat. § 8-41-209.......................................... 4

Fla. Stat. § 112.18 ....................................................... 4

iv

820 Ill. Comp. Stat. § 305/6 ........................................ 4

Ohio Rev. Code § 742.38 ............................................. 4

Or. Rev. Stat. § 656.802 .............................................. 4

Va. Code § 65.2-402..................................................... 4

53 Pa. Cons. Stat. § 637 .............................................. 4

Regulations

Wash. Admin. Code § 173-303-040............................. 9

Other Authorities

13C Charles Alan Wright, Arthur R. Miller

& Edward H. Cooper Fed. Prac. & Proc.

§ 3533.3 (3d ed. Supp. 2021) ................................. 14

4 Arthur Larson et al.,

Larson’s Workers’ Compensation Law (2021) ......... 4

Department of Ecology, State of Washington,

Other mixed waste facilities we oversee,

https://ecology.wa.gov/Waste-Toxics/

Nuclear-waste/Radioactive-waste-disposal

(last visited Mar. 11, 2022) ................................... 10

1

INTRODUCTION

The Court granted certiorari in this case to

decide whether a Washington law “that applies

exclusively to federal contract workers who perform

services at a specified federal facility is barred

by principles of intergovernmental immunity . . . .”

Pet. ( I ); Pet’r’s Br. ( I ). Washington has now changed

its law so that it no longer applies exclusively to

federal contract workers at a specified federal facility.

App. 1a-8a (Subst. Senate Bill 5890). Rather, it

applies to any employee, including state employees,

who work at a range of facilities. The question

presented is thus moot. And because the United

States sought only a declaration that the prior law

was invalid and to enjoin enforcement of the prior law,

this litigation is also moot. J.A. 40 (Complaint’s

Prayer for Relief ).

On March 11, 2022, Washington’s Governor

signed Substitute Senate Bill 5890, which

immediately repealed the portion of Washington’s law

to which the United States objected. The prior law

applied exclusively at the Hanford nuclear site and

only to workers employed by federal contractors,

which formed the basis for the United States’

objection and the premise of the question presented.

The revised law applies to any worker at any facility

storing or disposing of high-level radioactive waste

or mixed waste (of which there are several in

Washington), with exceptions for federal military

facilities. This is exactly the kind of statute that this

Court has previously upheld as authorized by federal

law and it is exactly the kind of statute that the

United States and the dissent from denial of

rehearing below previously argued is authorized.

2

This Court therefore should not address

whether the prior law discriminated against the

federal government and, if so, whether the waiver

of inter-governmental immunity under 40 U.S.C.

§ 3172(a) permitted such laws. That question is now

entirely hypothetical, so the Court should vacate the

Ninth Circuit opinion and remand to the district court

for dismissal or consideration of whether the United

States has any residual claims.

Even if the United States claims that the case

is not entirely moot and takes the position that

Washington’s revised law is invalid (contrary to its

prior argument that laws like this would be valid), the

Court should dismiss this case, vacate the opinions

below, and remand for the district court to consider

any new arguments and to develop a record regarding

the new law. Virtually every argument the United

States has made to date about problems with the prior

law—e.g., that it did not apply to state employees or

to non-federal facilities—is now inapposite. This

Court should not evaluate Washington’s new law in

the first instance.

STATEMENT OF THE CASE

A.

Washington Enacted a Law to Facilitate

Compensation for Workers at the Hanford

Nuclear Cleanup Site Who Suffer

Occupational Diseases

The Hanford site is a decommissioned nuclear

production site in southeast Washington that

produced large quantities of “highly radioactive

and chemically hazardous waste.” Pet. App. 2a.

Thousands of Washingtonians now work at the site

for private companies hired by the federal government

3

to clean up this waste. Pet. App. 4a. The Department

of Energy (DOE) describes the cleanup effort as

“unprecedented in scale and complexity,” exposing

workers to many hazardous chemicals and radioactive

substances. J.A. 42-43, 89-90, 97-106, 159-67.

Employees at Hanford work amid a unique

mix of toxic and radioactive substances that can

severely damage human health. J.A. 85-86, 88-90,

93-97, 172-76. For example, as the federal government

recognizes, even small doses of ionizing radiation

(which permeates Hanford’s mixed waste) can cause

cancer. J.A. 125-26, 173-76.

Hanford’s hazards extend beyond workers who

work directly with hazardous materials. Scientists

have found that office workers at Hanford are at

increased risk of exposure to dangerous substances,

with an increased risk of disease. J.A. 97-98,

198-200. Releases at Hanford have caused highly

dangerous radioactive materials to contaminate

workers, drifting outside the direct cleanup areas and

polluting clothing and cars. J.A. 198-200.

Despite the acknowledged dangers for Hanford

workers, neither federal contractors nor DOE

have consistently monitored conditions there to

allow medical professionals to know about particular

workers’ exposures to hazards. J.A. 97-98;

CA9.SER.300-01, 311. Because of these failures,

workers often have a difficult time identifying

specific incidents at work that caused their diseases

or conditions. J.A. 141, 168-69, 172-73. And with

no documentation of exposures, fairly compensating

4

Hanford workers for injuries and diseases presents

challenges not present at most Washington worksites.

J.A. 141, 169, 172-73.

In response to this situation, the Washington

Legislature enacted House Bill 1723 in 2018.

Wash. Rev. Code § 51.32.187(2)(a) (Substitute

H.B. 1723, 65th Leg., Reg. Sess. (Wash. 2018);

2018 Wash. Sess. Laws 226 (ch. 9, § 1)). Given the

many dangers discussed above of working at Hanford,

the difficulty workers have had in proving which

exposures to which chemicals made them sick,

and the consistently poor safety record of employers

operating at Hanford, the legislature created a

rebuttable presumption that certain diseases and

conditions of Hanford site workers are occupational

diseases under Washington’s workers’ compensation

system. Id. This rebuttable presumption was modeled

on similar presumptions Washington and other states

have applied to other categories of workers, such as

firefighters.1

Under House Bill 1723, the presumption

applied to “Hanford site workers,” defined as persons

engaged in work for the United States regarding

See, e.g., Wash. Rev. Code § 51.32.185 (creating

presumption of occupational disease for certain diseases for

firefighters); City of Frederick v. Shankle, 367 Md. 5, 785 A.2d

749 (2001); Linnell v. City of St. Louis Park, 305 N.W.2d 599

(Minn. 1981); Sperbeck v. Dep’t of Indus., Lab. & Human

Rels., 46 Wis. 2d 282, 174 N.W.2d 546 (1970); Ariz. Rev.

Stat. § 23-901.01; Cal. Lab. Code § 3212; Colo. Rev. Stat.

§ 8-41-209; Fla. Stat. § 112.18; 820 Ill. Comp. Stat. § 305/6; Ohio

Rev. Code § 742.38; Or. Rev. Stat. § 656.802; 53 Pa. Cons. Stat.

§ 637; Va. Code § 65.2-402; 4 Arthur Larson et al., Larson’s

Workers’ Compensation Law § 52.07[2] (2021).

1

5

projects and contracts at the Hanford nuclear site at

particular locations, for at least an eight-hour shift.

Former Wash. Rev. Code §§ 51.32.187(2)(a), (1)(b)

(2021). The “Hanford nuclear site” was defined as:

the approximately five hundred sixty square

miles in southeastern Washington state,

excluding leased land, state-owned lands, and

lands owned by the Bonneville Power

Administration, which is owned by the United

States and which is commonly known as the

Hanford reservation.

Former Wash. Rev. Code § 51.32.187(1)(a) (2021).

B.

Proceedings Before Amendment of the

Statute

The United States filed a complaint in 2018,

asserting that House Bill 1723 impermissibly

“singles out and discriminates against the Federal

Government and its contractors, purports to directly

regulate the Federal Government, and imposes

significant burdens on the Federal Government and

its contractors without imposing them on other

employers in the State, all in violation of the

Supremacy Clause . . . .” J.A. 28-29. The complaint

sought declaratory and injunctive relief in the

form of declaring the then-existing statute invalid

and enjoining its enforcement. J.A. 40. No damages

were sought. Id. The complaint acknowledged that

federal law waives intergovernmental immunity

so that “States may enforce their workers’

compensation laws against private employers

working on federal land ‘in the same way and

to the same extent as if the premises were under

the exclusive jurisdiction of the State.’ ” J.A. 33-34

6

(quoting 40 U.S.C. § 3172). Washington argued

that the waiver of intergovernmental immunity

in 40 U.S.C. § 3172 authorized Washington’s law

because it allows states to regulate on federal land “as

if the premises were under the exclusive jurisdiction

of the State,” and on land under the exclusive

jurisdiction of the State, Washington can and has

enacted workers compensation laws that target

particularly dangerous workplaces and employers.

The district court ruled for Washington on

cross-motions for summary judgment. Pet. App. 81a.

It held that “[t]he plain language” of § 3172 “allow[s]

the state to regulate federal lands within its

geographical boundaries with all the tools that could

be brought to bear on non-federally owned land.”

Pet. App. 80a. The federal government had conceded

in its briefing that § 3172 “authorizes the State to

regulate on federal land as it permissibly may do so

under state law[.]” EWDC.ECF.33, at 3. And at oral

argument, the United States stipulated that if the

federal government was not involved and the Hanford

site was on state land, Washington could adopt and

apply its special-hazard presumption. CA9.ER.22, 32;

J.A. 213, 221-22.

The Court of Appeals unanimously affirmed, in

an opinion by Judge Milan Smith. The court began by

examining the statute’s language, Pet. App. 10a,

concluding 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.’ ” Pet. App. 12a.

In doing so, it rejected the argument by the United

States that § 3172 authorizes only generally

applicable laws “rather than ‘discrete’ state laws that

7

‘single out’ the

contractors.” Id.

Federal

Government

and

its

The United States unsuccessfully moved for

rehearing en banc. Pet. App. 22a-23a. Like the United

States, the dissent from the denial of rehearing

focused on the law’s alleged singling out of the

federal government and the “facially discriminatory”

rules for presumption of occupational disease.

E.g., Pet. App. 38a-40a. Also like the United States,

the dissent conceded that a statutory scheme

similar to House Bill 1723 that applied more broadly

to include non-federal actors would be permissible.

Pet. App. 47a n.2 (“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.”). See also Pet. App. 46a-48a

(dissent from denial of rehearing generally describing

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

as allowing any type of workers’ compensation scheme

subject only to the requirement that the scheme apply

equally to federally owned and privately owned

facilities).

In its petition and merits brief to this Court, the

United States continued its focus on what it described

as the explicit singling out of the federal government

in Washington’s law. Pet. ( I ) (Question Presented);

Pet. 11; Pet’r’s Br. 16. And its arguments continued to

implicitly concede that if the law applied to federal

and non-federal actors, it would not violate intergovernmental immunity. For example, the United

States described the Supremacy Clause as allowing

application of a state law or regulation to federal

contractors “if it is ‘imposed on some basis unrelated

8

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.’ ”

Pet. 13 (quoting North Dakota v. United States,

495 U.S. 423, 437-38 (1990) (plurality opinion)). See

also Pet’r’s Br. 16 (“Section 3172(a) authorizes States

to apply workers’ compensation laws evenhandedly to

federal contract workers and other similarly situated

employees . . . .”). Similarly, the United States

acknowledged that states may distinguish among

workers in their workers’ compensation programs if

significant differences between the classes of workers

justify the differential treatment. Pet. 15 (citation

omitted); Pet’r’s Br. 24. The United States then

supported its view that the prior law did not properly

distinguish among workers by pointing out

illustratively that the prior law did not apply to state

inspectors or employees of private companies that

allegedly performed similar work. Pet. 15-16.

This Court granted the petition on the 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.”

Pet. ( I ).

9

C.

Washington Amends the Law to Cover All

Workers at All Radiological Hazardous

Waste Sites in Washington

In March 2022, the Washington Legislature

significantly amended the statute. App. 1a-8a

(Substitute Senate Bill 5890, 67th Leg., Reg. Sess.

(Wash. 2022)). The Governor signed the bill into law

on March 11, 2022, and it became effective

immediately. Id. The new law no longer applies its

presumptions and other features based on whether a

person works for a federal contractor or at the

Hanford nuclear site. Instead, the act covers everyone

working at radiological hazardous waste facilities,

defined as “any structure and its lands where

high-level radioactive waste as defined by 33 U.S.C.

Sec. 1402 or mixed waste as defined by [Wash.

Admin. Code §] 173-303-040 is stored or disposed of,

except for military installations as defined in

31 C.F.R. Part 802.227 and listed in Appendix A

to 31 C.F.R. Part 802.”2 App. 3a-4a (SSB 5890,

§ 1(1)(b)). Covered workers include anyone, including

state inspectors, who have worked at least an

eight-hour shift at a radiological hazardous waste

facility. Id. at § 1(1)(a). The new law also narrowed the

2 “High level radioactive waste” is “the aqueous waste

resulting from the operation of the first cycle solvent extraction

system, or equivalent and the concentrated waste from

subsequent extraction cycles, or equivalent, in a facility for

reprocessing irradiated reactor fuels, or irradiated fuel from

nuclear power reactors.” 33 U.S.C. § 1402. “Mixed waste” is “a

dangerous, extremely hazardous, or acutely hazardous waste

that contains both a nonradioactive hazardous component and,

as defined by 10 C.F.R. 20.1003, source, special nuclear, or

by-product material subject to the Atomic Energy Act of 1954

(42 U.S.C. § 2011 et seq.)” Wash. Admin. Code § 173-303-040.

10

diseases subject to the work-related presumption,

excluding communicable diseases. Id. at § 1 (3).

Coverage under the new law differs from the

prior law in several crucial respects relevant here.

For example, while the Hanford site is still covered

under the new law, the new law now applies to

all workers at the Hanford site, including state

inspectors and private employees not employed by

federal contractors (like the prior law, the new law

still exempts employees of the federal government,

Wash. Rev. Code § 51.12.060). The new law also

applies to a range of non-federal facilities within

the State, including facilities the United States

previously argued were comparable to Hanford but

not covered under the prior law, such as Perma-Fix

Northwest and Energy Northwest. Pet’r’s Br. 7 & n.3.

See, e.g., Department of Ecology, State of

Washington, Other mixed waste facilities we oversee,

https://ecology.wa.gov/Waste-Toxics/Nuclear-waste/

Radioactive-waste-disposal (last visited Mar. 11,

2022) (listing Washington facilities with mixed waste

permits).

ARGUMENT

This Court should vacate the decision below

and remand with instructions for the district court to

dismiss or consider whether the United States has

any residual claims. The statutory provisions that

formed the primary basis for the lawsuit no longer

exist, and the Court cannot provide any relief by

answering the now obsolete question presented.

11

I.

The Court Routinely Dismisses

Cases When Intervening Changes in

Law Make the Question on Which

Certiorari Was Granted Moot

This Court’s jurisdiction is limited to actual

“cases” or “controversies.” U.S. Const. art. III, § 2.

An “actual controversy must be extant at all stages of

review, not merely at the time the complaint is filed.”

Alvarez v. Smith, 558 U.S. 87, 92 (2009) (quoting

Preiser v. Newkirk, 422 U.S. 395, 401 (1975)).

“Throughout the litigation, the party seeking relief

must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be

redressed by a favorable judicial decision.” United

States v. Juv. Male, 564 U.S. 932, 936 (2011)

(per curiam) (emphasis added) (cleaned up).

Therefore, if circumstances change while an appeal is

pending that prevent the Court from providing

effective relief, the case becomes moot and must be

dismissed. Lewis v. Cont’l Bank Corp., 494 U.S. 472,

477-78 (1990). To decide the case on the merits despite

the changed circumstances would be to issue an

“advisory opinion[ ] on abstract propositions of law.”

Hall v. Beals, 396 U.S. 45, 48 (1969) (per curiam).

Ordinarily, the Court dismisses outright a case

that has become moot on appeal, vacating the

judgment below and remanding with directions to

dismiss. Lewis, 494 U.S. at 482. But “where the

mootness is attributable to a change in the legal

framework governing the case, and where the plaintiff

may have some residual claim under the new

framework . . . [the Court’s] practice is to vacate the

judgment and remand for further proceedings in

12

which the parties may, if necessary, amend their

pleadings or develop the record more fully.” Id.

An intervening change in the law that makes

answering the question presented meaningless in

providing any relief routinely renders litigation

moot. For example, in United States Department of

Treasury v. Galioto, 477 U.S. 556 (1986), the plaintiff

challenged a federal law prohibiting all persons who

had been previously involuntarily committed to a

mental institution from purchasing firearms, while

permitting some felons to do so. Id. at 557. After oral

argument, Congress amended the law relating to

firearms restrictions, allowing such persons—and

other persons subject to firearms restrictions—to

petition administratively for an exception. Id. at 559.

Thus, it could “no longer be contended that such

persons have been ‘singled out.’ Also, no ‘irrebuttable

presumption’ now exists since a hearing is afforded to

anyone subject to firearms disabilities. Accordingly,

the equal protection and ‘irrebuttable presumption’

issues discussed by the District Court are now moot.”

Id. at 559-60 (citations omitted). The Court thus

vacated the judgment below and remanded for

consideration of the remaining issues in the case.

Similarly, this Court recently dismissed as

moot a challenge to a New York City rule regarding

the transport of firearms because the state amended

its statutes and the City changed its rule. New York

State Rifle & Pistol Ass’n, Inc. v. City of New York, 140

S. Ct. 1525 (2020). Specifically, plaintiffs challenged a

rule preventing their transport of firearms to a second

home or shooting range outside the city. Id. at 1526.

After the Court granted certiorari, New York State

amended its statutes and New York City amended its

13

rule so that petitioners could transport firearms to a

second home or shooting range outside the city. Id.

Accordingly, the Court dismissed the case as moot,

despite plaintiffs’ claim that the new law and rule

continued to infringe on their rights, but in slightly

different ways. Id. (addressing arguments that under

the new law and rules, plaintiffs would not be able to

stop for gas, food, or restroom breaks while in transit,

and that plaintiffs might seek damages). Rather than

attempt to resolve plaintiffs’ continuing objections to

the new law, the Court recognized that the question

on which it had granted certiorari was moot and

remanded to the district court to allow the parties “if

necessary [to] amend their pleadings or develop the

record more fully.” Id. at 1526-27.

There are countless other examples of the

Court dismissing a case as moot due to intervening

changes in the law. E.g., United States v. Microsoft

Corp., 138 S. Ct. 1186, 1188 (2018) (per curiam)

(dismissing because legislation enacted after oral

argument had terminated the parties’ dispute “over

the issue with respect to which certiorari was

granted[ ]”); Bowen v. Kizer, 485 U.S. 386, 387 (1988)

(per curiam) (dismissing because legislation enacted

after case was briefed and argued mooted the case);

U.S. Dep’t of Justice v. Provenzano, 469 U.S. 14, 15-16

(1984) (per curiam) (dismissing as moot because new

law enacted after certiorari was granted meant that

Freedom of Information Act requests must be “judged

under the law presently in effect”); United Bldg.

& Constr. Trades Council v. Mayor and Council of

Camden, 465 U.S. 208, 213-14 (1984) (repeal

of residency durational requirement after certiorari

granted mooted equal protection challenge based on

14

that requirement); Diffenderfer v. Cent. Baptist

Church of Miami, 404 U.S. 412, 414 (1972) (per

curiam) (dismissing as moot case challenging church

parking lot as exempt from taxation because under

intervening law parking lot not automatically exempt;

remanding to allow amendment of pleadings if

necessary).

II.

Washington’s New Law Makes This

Case Moot

The same rationale applied countless times by

this Court after intervening legislation applies here.

The United States filed its complaint seeking

declaratory and injunctive relief regarding the prior

law, Washington Substitute House Bill 1723, which is

no longer effective. See J.A. 28, 40. Thus, the Court

can no longer provide effective relief because enjoining

enforcement of House Bill 1723 would not prevent

enforcement of the new law. And the United States

sought only declaratory and injunctive relief,

alleging no claim for damages under the former

law. J.A. 40. See New York State Rifle & Pistol Ass’n,

140 S. Ct. at 1526-27 (dismissing as moot and

rejecting plaintiffs’ argument that they might seek

damages because a claim for damages was not

included in the complaint); 13C Charles Alan Wright,

Arthur R. Miller & Edward H. Cooper Fed. Prac. &

Proc. § 3533.3 (3d ed. Supp. 2021) (claim for money

damages typically forestalls mootness, but claim for

declaratory and injunctive relief often does not).

More fundamentally, the gravamen of the

United States’ challenge to the former law, and

the entire premise of its question presented, is

that Washington cannot single out the federal

15

government in a workers’ compensation law. See

Pet’r’s Br. ( I ); J.A. 28-40. The United States

repeatedly acknowledged that workers’ compensation

laws can distinguish among types of work or types of

facilities, so long as the law does not single out the

federal government and applies more broadly.

E.g., Pet’r’s Br. 32-33 (“States may extend to federal

lands and facilities the same workers’ compensation

provisions that apply to similarly situated non-federal

premises.”) See also Pet. Reply at 3 (“ ‘the State was

free to draw’ classifications based on the employee’s

working conditions or the employer’s safety record.”

(quoting Dawson v. Steager, 139 S. Ct. 698, 706

(2019)). Similarly, the dissent from denial of

rehearing acknowledged that “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.” Pet. App. 47a n.2. See generally

Reynoldsville Casket Co. v. Hyde, 514 U.S. 749,

755-56 (1995) (explaining that where a state law

allegedly violates the constitution because of

“differential treatment of two similar classes,” the

State can “cure the problem either by similarly

burdening, or by similarly unburdening, both groups,”

and citing as an example the intergovernmental

immunity case Davis v. Michigan Department of

Treasury, 489 U.S. 803 (1989)).

The newly amended law, which no longer

differentiates federal contractors from other

employers and instead distinguishes among types

of facilities, has thus mooted the basis for the

complaint of the United States. Answering the

question presented will be a purely “advisory

16

opinion[ ] on abstract propositions of law” relating to a

now defunct statute. Hall, 396 U.S. at 48. And for

purposes of evaluating the new statute, no relief can

be granted to the United States because even if the

Court were to agree that a state may not apply a

workers’ compensation law exclusively to federal

contractors, the new statute does no such thing.

Even if the United States may object to the new

state law, that does not affect the mootness issue

because such an objection would raise different issues

and require development of a different record. The

United States could no longer argue that a law

applying exclusively to federal contractors was

invalid; instead, the United States would have to show

that a workers’ compensation scheme addressing

particularly dangerous worksites, applied to federal

and non-federal employers alike, was invalid.

This Court should thus follow its regular

practice when a change in law moots a case and

“vacate the judgment and remand for further

proceedings in which the parties may, if necessary,

amend their pleadings or develop the record more

fully.” Lewis, 494 U.S. at 482.

The United States may contend that enjoining

enforcement of House Bill 1723 could still have some

impact on pending claims filed under the old

version of the law, but that would be incorrect.

While some workers’ compensation claims filed under

House Bill 1723 are still working their way through

State administrative and court proceedings, any claim

that has been approved under House Bill 1723 would

also be approved under the revised law, so striking

down House Bill 1723 would have no ultimate

17

impact on those claims. Specifically, Senate Bill 5890

expands the rebuttable presumption created by

House Bill 1723 beyond federal contract workers at

Hanford to cover not only all workers at Hanford, but

also all workers at other radiological hazardous waste

facilities in Washington. App. 3a-4a (SSB 5890 § 1).

Thus, no worker whose pending claim has received the

benefit of House Bill 1723’s rebuttable presumption

would lose that benefit under the revised law, and

there would be no benefit to the United States of

invalidating House Bill 1723.3

CONCLUSION

The Court should vacate the Ninth Circuit

opinion and remand to the district court for dismissal

or consideration of whether the United States has any

residual claims.

RESPECTFULLY SUBMITTED.

ROBERT W. FERGUSON

Attorney General

NOAH G. PURCELL

Solicitor General

Counsel of Record

1125 Washington Street SE

Olympia, WA 98504-0100

360-753-6200

March 15, 2022

3

ANASTASIA R. SANDSTROM

Senior Counsel

PETER B. GONICK

Deputy Solicitor General

The only way in which Senate Bill 5890 narrows

application of the rebuttable presumption as compared to House

Bill 1723 is by removing communicable diseases from the list of

presumptively work-related illnesses, SSB 5890 § 1(3)(a), (e), but

the State is unaware of any such claims.

APPENDIX

1a

CERTIFICATION OF ENROLLMENT

SUBSTITUTE SENATE BILL 5890

67th Legislature

2022 Regular Session

Passed by the Senate

February 12, 2022

Yeas 32

Nays 17

CERTIFICATE

I,

Sarah

Bannister,

Secretary of the Senate of

the State of Washington,

_________________________ do hereby certify that the

President of the Senate attached is SUBSTITUTE

SENATE BILL 5890 as

passed by the Senate and

the

House

of

Representatives on the

Passed by the House

dates hereon set forth.

March 2, 2022

Yeas 68

Nays 27

_________________________

Secretary

_________________________

Speaker of the House of

Representatives

Approved

_________________________

Governor of the State of

Washington

FILED

Secretary of State

State of Washington

2a

SUBSTITUTE SENATE BILL 5890

Passed Legislature – 2022 Regular Session

State of Washington 67th Legislature 2022 Regular Session

By Senate Labor, Commerce & Tribal Affairs

(originally sponsored by Senators Keiser, Conway,

Dhingra, Hasegawa, Kuderer, Lovick, Nobles,

Saldaña, Stanford, Wellman, and C. Wilson)

READ FIRST TIME 02/03/22.

AN ACT Relating to clarifying eligibility for the

presumption for workers’ compensation for all

personnel working at a radiological hazardous waste

facility; amending RCW 51.32.187; and declaring an

emergency.

BE IT ENACTED BY THE LEGISLATURE OF THE

STATE OF WASHINGTON:

Sec. 1. RCW 51.32.187 and 2019 c 108 s 1 are

each amended to read as follows:

(1) The definitions

throughout this section.

in

this

section

apply

(a) ( (“Hanford nuclear site” and “Hanford site”

and “site” means the approximately five hundred sixty

3a

square miles in southeastern Washington state,

excluding leased land, state-owned lands, and lands

owned by the Bonneville Power Administration,

which is owned by the United States and which is

commonly known as the Hanford reservation.

(b) “United States department of energy Hanford

site workers” and “Hanford site worker” means any

person, including a contractor or subcontractor, who

was engaged in the performance of work, either

directly or indirectly, for the United States, regarding

projects and contracts at the Hanford nuclear site and

who worked on the site at the two hundred east, two

hundred west, three hundred area, environmental

restoration disposal facility site, central plateau, or

p. 1

the river corridor locations for at least one eight-hour

shift while covered under this title.

(2)(a)

For United States department of energy

Hanford site workers, as defined in this section, who

are covered under this title, there exists a prima facie

presumption that the diseases and conditions listed in

subsection (3) of this section are occupational diseases

under RCW 51.08.140) ) “Exposed worker(s)” means a

worker working at a radiological hazardous waste

facility for at least an eight hour shift covered under

this title, including conducting an inspection of the

facility.

(b) “Radiological hazardous waste facility” means

any structure and its lands where high-level

radioactive waste as defined by 33 U.S.C. Sec. 1402 or

mixed waste as defined by WAC 173-303-040 is stored

or disposed of, except for military installations as

4a

defined in 31 C.F.R. Part 802.227 and listed in

Appendix A to 31 C.F.R. Part 802.

(2)(a) For exposed workers who are covered

under this title, there exists a prima facie

presumption that the diseases and conditions listed in

subsection (3) of this section are occupational diseases

under RCW 51.08.140.

(b) This presumption of occupational disease may

be rebutted by clear and convincing evidence. Such

evidence may include, but is not limited to, use of

tobacco products, physical fitness and weight,

lifestyle, hereditary factors, and exposure from other

employment or nonemployment activities.

(3) The prima facie presumption applies to the

following:

(a) Respiratory disease, except communicable

diseases;

(b) Any heart problems, experienced within

seventy-two hours of exposure to fumes, toxic

substances, or chemicals at the site;

(c) Cancer, subject to subsection (4) of this

section;

(d) Beryllium sensitization,

chronic beryllium disease; and

and

acute

and

(e) Neurological disease, except communicable

diseases.

(4)(a) The presumption established for cancer

only applies to any active or former ( (United States

department of energy Hanford site) ) exposed worker

who has cancer that develops or manifests itself and

who either was given a qualifying medical

5a

examination upon becoming ( (a United States

department of energy Hanford site) ) such a worker

that showed no evidence of cancer or was not given a

qualifying

p. 2

medical examination because a qualifying medical

examination was not required.

(b) The presumption applies to the following

cancers:

(i)

Leukemia;

(ii) Primary or secondary lung cancer, including

bronchi and trachea, sarcoma of the lung, other than

in situ lung cancer that is discovered during or after a

postmortem examination, but not including

mesothelioma or pleura cancer;

(iii) Primary or secondary bone cancer, including

the

bone

form

of

solitary

plasmacytoma,

myelodysplastic syndrome, myelofibrosis with

myeloid metaplasia, essential thrombocytosis or

essential thrombocythemia, primary polycythemia

vera (also called polycythemia rubra vera, P. vera,

primary polycythemia, proliferative polycythemia,

spent-phase polycythemia, or primary erythremia);

(iv) Primary or secondary renal (kidney) cancer

(v)

Lymphomas, other than Hodgkin’s disease;

(vi) Waldenstrom’s

mycosis fungoides; and

macroglobulinemia

and

(vii) Primary cancer of the: (A) Thyroid; (B) male

or female breast; (C) esophagus; (D) stomach; (E)

pharynx, including all three areas, oropharynx,

6a

nasopharynx, and hypopharynx and the larynx. The

oropharynx includes base of tongue, soft palate and

tonsils (the hypopharynx includes the pyriform sinus);

(F) small intestine; (G) pancreas; (H) bile ducts,

including ampulla of vater; (I) gall bladder; (J)

salivary gland; (K) urinary bladder; (L) brain

(malignancies only and not including intracranial

endocrine glands and other parts of the central

nervous system or borderline astrocytomas); (M)

colon, including rectum and appendix; (N) ovary,

including fallopian tubes if both organs are involved;

and (O) liver, except if cirrhosis or hepatitis B is

indicated.

(5)(a) The presumption established in this

section extends to an ( (applicable United States

department of energy Hanford site) ) exposed worker

following termination of service for the lifetime of that

individual.

(b) A worker or the survivor of a worker who has

died as a result of one of the conditions or diseases

listed in subsection (3) of this section, and whose claim

was denied by order of the department, the board of

industrial insurance appeals, or a court, can file a new

claim for the same exposure and contended condition

or disease.

p. 3

(c) This section applies to decisions made after

June 7, 2018, without regard to the date of last

injurious exposure or claim filing.

(6)(a) When a determination involving the

presumption established in this section is appealed to

the board of industrial insurance appeals and the final

7a

decision allows the claim of benefits, the board of

industrial insurance appeals shall order that all

reasonable costs of the appeal, including attorneys’

fees and witness fees, be paid to the worker or his or

her beneficiary by the opposing party.

(b) When a determination involving the

presumption established in this section is appealed to

any court and the final decision allows the claim for

benefits, the court shall order that all reasonable costs

of appeal, including attorneys’ fees and witness fees,

be paid to the worker or his or her beneficiary by the

opposing party.

NEW SECTION. Sec. 2. This act is necessary

for the immediate preservation of the public peace,

health, or safety, or support of the state government

and its existing public institutions, and takes effect

immediately.

- - - END - - p. 4