In United States v. Washington the Supreme Court will decide whether Washington State may adopt a workers’ compensation statute which applies exclusively to federal contract workers.

Washington’s statute applies to federal contractors working at Hanford, a decommissioned federal nuclear production site covering over 500 square miles in the state. Hanford was active between 1944 and 1989 and “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.” 

It is easier for workers covered by the Hanford program to demonstrate they are entitled to benefits than those covered by Washington’s regular workers’ compensation program. The Hanford program applies to at least 100,000 current and former federal contractors. Cleanup operations are expected to last at least six more decades.

The United States argues that this statute violates the doctrine of intergovernmental immunity. Per this doctrine, which derives from the Constitution’s Supremacy Clause, state laws are invalid if they regulate the United States directly or discriminate against the federal government.  

The Ninth Circuit held that Washington state’s statute doesn’t violate the doctrine of intergovernmental immunity because it falls within 40 U.S.C. 3172(a)’s waiver of governmental immunity.

Section 3172 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.”

Before the Ninth Circuit the United States argued that the phase “in the same way and to the same extent” is a “very limited waiver” of immunity. According to the United States, this text and the Court’s opinion in Goodyear Atomic Corp. v. Miller (1988), “strongly suggest” that Section 3172 authorizes only the “extension of generally applicable laws,” rather than “discrete” workers’ compensation state laws that “single out” the federal Government and its contractors.

The Ninth Circuit disagreed opining: “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.” The Ninth Circuit further reasoned: “when the phrase ‘in the same way and to the same extent’ is read with ‘as if the premises were under the exclusive jurisdiction of the State,’ it is evident that § 3172 removes federal jurisdiction as a barrier to a state’s authority over workers’ compensation laws for all who are located in the state.”

When the entire Ninth Circuit refused to rehear this case, four judges dissented. Judge Collins wrote in dissent: “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 (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.” 

Washington’s law appears to be unique, but it might not be for long the United States argued in its brief asking the Court to take this case, if the Court rules in favor of Washington. According to the United States, if it loses this case, other states could adopt workers’ compensation statutes targeting “military bases, national parks, DOE laboratories and nuclear sites, and numerous other facilities where federal contract workers perform arguably hazardous tasks.”

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