Issues
Does a state workers’ compensation law that only applies to federal contract workers who work at a specific federal facility violate the doctrine of intergovernmental immunity?
This case asks the Supreme Court to consider whether the State of Washington’s workers’ compensation law may apply to certain federal contract workers without violating the intergovernmental immunity doctrine, which prevents state and federal governments from interfering with each other’s sovereignty. The United States argues the intergovernmental immunity doctrine applies and mandates that the state workers’ compensation law apply evenhandedly to federal, state, and private actors. Washington counters that the federal government has waived its intergovernmental immunity by statute, and even if it did not, the intergovernmental immunity doctrine does not require completely equal treatment of federal and non-federal actors. The outcome of this case has important implications for consideration of workplace dangers and the costs associated with workers’ compensation.
Questions as Framed for the Court by the Parties
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.”
Facts
The Hanford site is a decommissioned federal facility for nuclear production in Washington State. United States v. Washington at 858. While active during World War II and the Cold War, approximately two-thirds of the United States’ weapons grade plutonium was produced at the Hanford facility. Id. The nuclear production resulted in large amounts of chemically hazardous and radioactive waste. Id. Since the shutdown of the Hanford site in 1989, the United States Department of Energy (“DOE”) has overseen its cleanup, which will likely last roughly sixty more years. Id. DOE has mainly used private contractors and subcontractors to clean up the Hanford site. Id. Both employees of private contractors working on federal land and employees of DOE contractors working at the Hanford site are permitted to pursue state workers’ compensation claims. Id. Under federal law, state workers’ compensation laws may be applied to federal facilities as though the premises were exclusively controlled by the state. 40 U.S.C. § 3172(a).
In 2018, Washington enacted H.B. 1723, which applies only to workers at the Hanford site that work directly or indirectly for the United States. Id. Specifically, H.B. 1723 establishes a prima facie presumption for DOE Hanford facility workers that specific diseases and conditions are “occupational diseases” under the Washington Industrial Insurance Act (“WIIA”). Id. at 860. This is a rebuttable presumption, meaning that employer can overcome this presumption if it produces clear and convincing evidence that other factors caused the disease or condition, such as lifestyle, physical fitness, or tobacco use. Id. This presumption applies “following termination of service for the lifetime of” a worker covered under H.B. 1723 and permits a covered worker or their survivor to refile a claim that was previously denied. Id. Moreover, when the presumption applies, a claimant may recover reasonable costs if an appeal results in a benefits award. Id.
H.B. 1723’s enactment prompted the United States to sue Washington. Id. at 858. The United States—concerned about “heightened liability”—argued that H.B. 1723 “impermissibly and directly regulates and discriminates against the Federal Government” and its workers, in violation of intergovernmental immunity. Id. Under the Supremacy Clause, intergovernmental immunity prevents state governments and the federal government from interfering with each other’s sovereignty. Id. Moreover, under the doctrine of intergovernmental immunity, states’ laws are invalid if they “regulate the United States directly or discriminate against the federal government or those with whom it deals.” Id. at 861. However, if Congress provides “clear and unambiguous” authorization for states to issue such a regulation, then such laws do not violate the intergovernmental immunity doctrine. Id. Both the United States and Washington agree that, under 40 U.S.C. § 3172, state workers’ compensation laws may be applied to federal facilities as though the premises were exclusively controlled by the state and that 40 U.S.C. § 3172 waives DOE’s immunity from state workers’ compensation laws. They disagree about whether 40 U.S.C. § 3172 authorizes workers’ compensation laws that apply specifically to workers of those with whom the federal government deals. Id.
The district court granted summary judgment for Washington, stating that under 40 U.S.C. § 3172 Congress waives intergovernmental immunity and permits states to apply their own workers’ compensation laws to all federal land and projects within the state. Id. at 858. The Ninth Circuit Court of Appeals affirmed the district court’s holding and held that 40 U.S.C. § 3172’s waiver covers H.B. 1723 and does not violate intergovernmental immunity. Id.
On September 8, 2021, the United States filed a petition for writ of certiorari in the Supreme Court. Brief for Petitioner, United States of America (“United States”) at 2.
Analysis
WAIVER OF INTERGOVERNMENTAL IMMUNITY
Petitioner the United States argues that the intergovernmental immunity doctrine applies and has not been waived. See Brief for Petitioner, United States at 19. Under the doctrine of federal intergovernmental immunity, which the United States maintains is a canon “almost as old as the Nation,” the federal and state governments lack the power to burden the other’s exercise of its designated powers. See id. at 18–19. According to the United States, intergovernmental immunity can be waived if a federal statute “clear[ly] and unambiguous[ly]” authorizes the waiver. See id. at 36. In evaluating potential waivers, the United States posits, courts may not deem a statute “clear and unambiguous” if the statute can plausibly be read another way. See id. at 36–37. The United States asserts that 40 U.S.C. § 3172(a), the federal law governing the “[e]xtension of state workers’ compensation laws to buildings, works, and property of the Federal Government,” does not clearly and unambiguously authorize Washington to impose its state workers’ compensation regime governing the Hanford site, as codified in H.B. 1723. See id. at 30. Thus, the United States contends that the intergovernmental immunity doctrine operates in this case. See id. at 22.
Respondent, the State of Washington (“Washington”) counters that the intergovernmental immunity doctrine does not apply because 40 U.S.C. § 3172(a) waives the doctrine as it applies to state workers’ compensation laws. See Brief for Respondent, State of Washington at 30, 48. Washington argues that intergovernmental immunity is completely waived in this context, meaning that states may permissibly regulate workers’ compensation on federal lands as if the lands fell exclusively under state jurisdiction. See id. at 30. Washington points to the plain text of 40 U.S.C. § 3172(a) as evidence of the waiver: § 3172(a) authorizes states to regulate workers’ compensation for federal lands and projects “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the state.” See id. at 31. Washington emphasizes the language, “as if the premises were under the exclusive jurisdiction of the state,” contending that it eliminates federal jurisdiction as a barrier to state authority and is facially inconsistent with the government retaining immunity from state regulation of workers’ compensation. See id. at 32. Washington compares § 3172(a)’s language to the language of other statutes that grant only partial waivers of intergovernmental immunity. See id. at 41. Washington observes that many partial waiver statutes employ precise, narrow language to partially waive intergovernmental immunity, whereas § 3172(a) uses expansive waiver language, “as if the premises were under the exclusive jurisdiction of the state.” See id. Washington asserts that Congress did not intend to limit § 3172(a)’s intergovernmental immunity waiver. See id. at 43.
EVENHANDED REGULATION UNDER THE INTERGOVERNMENTAL IMMUNITY DOCTRINE
The United States argues that H.B. 1723 violates the intergovernmental immunity doctrine because it discriminates against the federal government and those with whom it contracts, instead of applying evenhandedly to federal, state, and private actors. See Brief for Petitioner at 19. The United States maintains that a law will not violate the intergovernmental immunity doctrine if it imposes equal duties on entities that deal with the federal government and other “similarly situated” private actors. See id. at 20. In other words, the United States asserts, courts will uphold laws that treat regulated entities “with an even hand.” See id. at 21. Consequently, the United States contends, courts may uphold laws even if they indirectly burden the federal government, provided the laws do not discriminate against the federal government and entities with whom it deals. See id. at 20. The United States asserts that states may permissibly impose workers’ compensation laws on federal lands under § 3172(a), provided they apply their laws on evenhanded, nondiscriminatory terms. See id. at 31. The United States reads § 3172(a)’s statutory language to mean that states may apply their workers’ compensation laws to federal lands and projects if the laws are applied elsewhere in the state “in the same way and to the same extent.” See id. at 32. To support this reading, the United States notes that the section is titled “Extension of state workers’ compensation laws to buildings, works, and property of the Federal Government” and treats the application of the state workers’ compensation regime as naturally extended to include federal parties. See id. at 31. The United States emphasizes that a court should analyze whether a law actually applies evenhandedly to federal and non-federal entities in practice, arguing against Washington’s use of hypotheticals. See id. at 38.
Washington disagrees with the United States’ emphasis on evenhandedness, arguing that § 3172(a) does not prohibit regulations governing federal land from differing from regulations governing state or private land. See Brief for Respondent at 39. Washington takes issue with the United States’ assessment of the need for evenhandedness and the likely results of the United States’ construction of the concept. See id. at 39. Washington proposes a hypothetical to accentuate the limits of the United States approach to evenhandedness. See id. Washington asserts that a state could enact workers’ compensation protections for shipbuilders working within the state, provided shipbuilding facilities existed on both federal and non-federal land; however, if no private facilities existed in the state, resulting in the protections only applying to employees working on federal land, the law would violate § 3172(a). See id. Rather than hinging the validity of a law on whether federal and state or private entities actually exist and are subject to regulation, Washington argues that regulation may be based on hypothetical comparisons to how a law would regulate federal government and state or private contractors. See id. at 39. Washington highlights the phrase “as if” in “as if the premises were under the exclusive jurisdiction of the state” as evidence. See id. at 39.
WHETHER H.B. 1732 DISCRIMINATES AGAINST FEDERAL GOVERNMENT CONTRACTORS
The United States argues that H.B. 1723 violates the intergovernmental immunity doctrine through “blatant facial discrimination” against the federal government and entities with whom it deals, without “clear and unambiguous congressional authorization” to so discriminate. See Brief for Petitioner at 19, 22. This is because, the United States maintains, H.B. 1723 creates a workers’ compensation regime that is unique to Hanford site employees and more claimant-friendly than other workers’ compensation regimes within Washington. See id. at 22–23. The United States notes that H.B. 1723’s coverage impermissibly discriminates based on government contractor status in violation of the Supremacy Clause. See id. at 26. The regime, the United States asserts, classifies workers based on work at a particular site and their performance of services on behalf of the federal government, instead of basing the class on distinctions such as the particular safety hazards workers face at the Hanford site. See id. at 25–26. The United States observes that H.B. 1723’s operation can lead to absurd results—for example, the regime would cover a federally contracted accountant, who does not work at the most contaminated parts of the site, but it would not cover state employees hired to routinely inspect the Hanford site. See id. at 25. Similarly, the United States claims that H.B. 1723 will exclude privately- or state-owned portions of the Hanford site due to their lack of affiliation with the federal government. See id. at 23.
Washington disputes the United States’ claim that H.B. 1723 merely classifies workers based on federal contractor status by underscoring different justifications for the rule. See Brief for Respondent at 50. Washington asserts that the Hanford site was uniquely dangerous. See id. Washington maintains that the H.B. 1723’s specificity is supported by scientific reports and expert testimonies about the Hanford site’s risks. See id. at 50. Washington responds to the United States’ arguments that it would be absurd for the regime to cover office workers like accountants, but not state inspectors, by noting that scientific reports demonstrate that on-site office workers, but not state inspectors, experienced toxic exposures. See id. at 49–50. Additionally, in Washington’s view, H.B. 1723 comports with established workers’ compensation regimes in the state. See id. at 49. Washington points out that it has adopted similar presumption laws, which the United States concedes are permissible, that target the distinct safety concerns that firefighters, police officers, and healthcare workers face in their work. See id. Furthermore, Washington stresses the Hanford site workers have had an especially difficult time recovering workers’ compensation for their injuries. See id. In any event, Washington argues that when the state legislature passed H.B. 1723, it made a legislative choice, and its legislative choice should receive deference from the court. See id. Washington reiterates its argument that the intergovernmental immunity doctrine has been waived, therefore the state has discretion to regulate workers’ compensation for DOE Hanford facility workers. See id. at 51.
Discussion
DANGEROUS WORKING CONDITIONS
The United States argues that H.B. 1723 is not tailored to focus on workplace safety. Brief for Petitioner at 26. Petitioner asserts that H.B. 1723 fails to identify workers “based on the dangers of their work” nor does it identify workers based on their safety records. Id. Moreover, the United States contends, H.B. 1723 creates beneficial workers’ compensation guidelines for employees who have worked at a specific site, in this case the Hanford site, and have performed tasks for the federal government, without regard for the dangers any individual employee is exposed to. See id. The United States asserts that H.B. 1723 fails to adequately serve as a measure connected to workplace safety. See id.
The Workers’ Injury Law & Advocacy Group (“WILG”) argues, in favor of Washington, that H.B. 1723 is tailored to focus on workplace safety. Brief of Amicus Curiae Workers’ Injury Law & Advocacy Group (“WILG”), in Support of Respondent at 9 – 10. Specifically, WILG argues that the federal government has already acknowledged the inherent risk that workers are exposed to in working with hazardous materials and the need to provide benefits to such workers who develop occupational diseases from exposure to radioactive materials. See id. WILG asserts that Congress has prioritized the reporting of work-related illnesses and injuries by employers as exemplified by the Occupational Safety & Health Administration’s (“OSHA”) focus on record keeping requirements. See id. Moreover, WILG contends that the State of Washington has likewise prioritized the reporting of such issues through the adoption of the Washington Industrial Safety & Health Act (WISHA). See id. at 13. WILG highlights that the State of Washington has always treated workers differently based on the hazards specifically present at their workplaces. Id. at 16. Specifically, the WILG argues, Washington has always considered employers’ risk as demonstrated by their “firefighter presumption,” which was adopted in 1987. Id. WILG argues that this presumption is explicitly based on the risks taken on by people who work as firefighters. Id. Likewise, the WILG argues, the State of Washington specifically examined the risk inherent in the jobs of workers at the Hanford site in creating a “presumption of compensability” under circumstances detailed in H.B. 1723. Id. at 21.
COSTS OF WORKERS’ COMPENSATION
The United States argues that the costs of compensating workers associated with H.B. 1723 rests entirely on the federal government and the firm with which it is contracting. Brief for Respondent at 23. The United States asserts that DOE directly pays for the costs of workers’ compensation because it acts as a “self-insurer.” Id. Moreover, the United States contends that DOE reimburses workers’ compensation costs incurred by private firms that employ federal contractor workers. Id. The United States argues that the workers’ compensations costs inflicted on the federal government are significant, and H.B. 1723 makes it difficult for the federal government to escape liability because it gives workers’ and their survivors a “lifetime entitlement to benefits.” Id. Additionally, the United States argues, it is difficult to overcome the presumption of benefits eligibility, thus making it even more difficult for the federal government to avoid incurring such large workers’ compensation costs. Id. The United States emphasizes that a worker would be eligible for compensation after working one eight-hour shift at the Hanford site and later developing an illness. Id. at 24.
WILG argues that H.B. 1723 has not caused an additional financial burden on the federal government and taxpayers in paying for workers’ compensation claims made by Hanford site workers. Brief of WILG at 23. WILG notes that the federal government has already spent billions in funding the Hanford site cleanup and this cost could eventually amount to $700 billion over the next 60 years. Id. However, WILG argues that there’s no evidence that presumption created by H.B. 1723 has negatively impacted the costs of workers’ compensation inflicted on the federal government. Id. at 24. WILG emphasizes that since H.B. 1723’s adoption, the number of annual workers’ compensation claims has actually declined at the Hanford site. Id. Additionally, the WILG notes that the rate at which claims using the presumption provided by the enactment of H.B. 1723 has declined since the law’s enactment. Id.
Conclusion
Acknowledgments
Additional Resources
- Dan Schweitzer, Supreme Court Report: United States v. Washington, 21-404, NAAG (January 20, 2022).
- Niina H. Farah, Supreme Court nuclear fight at odds with ‘Cancer Moonshot’, E&E News (March 22, 2022).