United States v. Washington

• Decision Date: 19 August 2020
• Docket Number: No. 19-35673,19-35673
• Citation: 971 F.3d 856
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. 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.
• Court: U.S. Court of Appeals — Ninth Circuit

971 F.3d 856

UNITED STATES of America, Plaintiff-Appellant,

v.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.

No. 19-35673

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2020 Seattle, Washington

Filed August 19, 2020

John S. Koppel (argued) and Mark B. Stern, Appellate Staff; Bill Hyslop, United States Attorney; Joseph H. Hunt, Assistant Attorney General; Civil Division, United States Department of Justice, Washington, D.C.; for Plaintiff-Appellant.

Noah G. Purcell (argued), Solitor General; Anastasia Sandstrom, Senior Counsel; Paul Wiedeman, Assistant Attorney General; Robert W. Ferguson, Attorney General; Office of the Attorney General, Olympia, Washington; for Defendants-Appellees.

Before: RICHARD R. CLIFTON and MILAN D. SMITH, JR., Circuit Judges, and JAMES DONATO,^* District Judge.

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 (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 Washington¹ , 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

I. Factual Background

A. The Hanford Site Cleanup

The Hanford site cleanup is, in the DOE's words, "unprecedented in its scale and complexity." The liquid waste that the site generated—over fifty million gallons—is stored in 177 underground holding tanks, most of which are over seven decades old. The site also produced 270 billion gallons of contaminated groundwater, twenty-five million cubic feet of buried or stored solid waste, 2,300 tons of spent nuclear fuel, and twenty tons of plutonium bearing materials. There are roughly 10,000 DOE contractor employees at the Hanford site, some of whom perform the cleanup operations. Individuals working at the Hanford site cleanup operations face exposure to radioactive substances and hazardous chemicals.

B. Washington's Workers’ Compensation Scheme

The Washington Industrial Insurance Act (WIIA) is the State's workers’ compensation and industrial insurance regime. See Wash. Rev. Code § 51.04.10 et seq . The WIIA establishes a statutory mechanism for workers that have suffered injury or contracted an "occupational disease," id. § 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. , 109 Wash.2d 467, 745 P.2d 1295, 1301 (1987).

Since 1937, the WIIA has covered employees of private contractors who work on federal land located in the state. See An act relating to workmen's compensation, ch. 147, 1937 Wash. Sess. Laws 525 (codified as amended at Wash. Rev. Code § 51.12.060 ).² The State extended its workers’ compensation laws to the employees of federal contractors following the enactment of 40 U.S.C. § 290, the former federal law that authorized states to apply their workers’ compensation laws to federal land and projects located within the state.³ Wash. Rev. Code § 51.12.060. Thus, employees of DOE contractors and subcontractors at the Hanford site may pursue state workers’ compensation claims. The WIIA, however, does not cover DOE's own employees. Id.

In 1997, Washington amended the WIIA to permit the DLI to approve, upon the request of the United States Secretary of Defense or the Secretary of the DOE, "special insuring agreements providing industrial insurance coverage for workers engaged in the performance of work, directly or indirectly, for the United States regarding projects and contracts at the Hanford Nuclear Reservation." 1997 Wash. Sess. Laws 573 (codified at Wash. Rev. Code § 51.04.130 ). The DOE has paid the benefits awards and administrative costs of workers’ compensation claims for the employees of many of its contractors and subcontractors pursuant to contractual obligations as well as pursuant to memoranda of understanding (MOU) with the State. The DOE and Washington entered into the most recent MOU after Washington enacted HB 1723. Private contractors not covered by an MOU provide workers’ compensation coverage through the State workers’ compensation fund or as self-insurers.

C. HB 1723

This case concerns HB 1723's amendments to the WIIA. The law applies to "United States department of energy Hanford site workers" and "Hanford site workers," defined as:

[A]ny person, including a contractor or subcontractor, who was engaged in the performance of work, either directly or indirectly, for the United States, regarding projects and contracts at the Hanford nuclear site and who worked on the site at the two hundred east, two hundred west, three hundred area, environmental restoration disposal facility site, central plateau, or the river corridor locations for at least one eight-hour shift while covered under this title."

Wash. Rev. Code § 51.32.187(1)(b).⁴ It is estimated that the law may cover some 100,000 persons.

HB 1723 creates a "prima facie presumption" for "United States [DOE] Hanford site workers" that certain "diseases and conditions" are "occupational diseases" under the WIIA. Id. § 51.32.187(2)(a) ; see also id. §§ 51.32.187(3) (identifying certain conditions), 51.32.187(4) (specifying the requirements for and application of the presumption to certain cancers

). An employer may rebut the presumption by "clear and convincing evidence," which includes the "use of tobacco products, physical fitness and weight, lifestyle, hereditary factors, and exposure from other employment or nonemployment activities." Id. § 51.32.187(2)(b). The presumption applies "following termination of service for the lifetime of" a covered worker. Id. § 51.32.187(5)(a). A covered worker or the survivor of a deceased covered worker may refile a previously denied claim. Id . § 51.32.187(5)(b). In addition, a claimant may recover reasonable costs, including attorney's fees, in any appeal that results in a benefits award when the presumption applies. Id . § 51.32.187(6).

II. The District Court Proceedings

The United States brought suit for declaratory and injunctive relief against Washington, claiming that HB 1723 discriminates against the Federal Government and directly regulates it in violation of the doctrine of intergovernmental immunity. On cross motions, the district court granted summary judgment for the State. The court reasoned that 40 U.S.C. § 3172 ’s waiver of immunity permits the State "to use the same power it possesses to craft workers compensation laws for non-federal employees to address injured employees on federal land," including "the ability to legislate, in a piecemeal fashion, to address specific risks to employees in specific industries." The United States timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a district court's decision on cross motions for summary judgment. Empire Health Found. v. Azar , 958 F.3d 873, 882 (9th Cir. 2020). Statutory interpretation is a question of law that we review de novo. Comcast of Sacramento I, LLC v. Sacramento Metro. Cable TV Comm'n , 923 F.3d 1163, 1168 (9th Cir. 2019).

ANALYSIS

I. The Doctrine of Intergovernmental Immunity

The United States’ claims against Washington invoke the doctrine of intergovernmental immunity. That doctrine "derive[s] from the Supremacy Clause of the Federal Constitution, U.S. Const., art. VI, which mandates that ‘the activities of the Federal Government are free from regulation by any state.’ " United States v. California , 921 F.3d 865, 878 (9th Cir. 2019) (quoting Boeing Co. v. Movassaghi , 768 F.3d 832, 839 (9th Cir. 2014) ), cert. denied , ––– U.S. ––––, ––– S.Ct. ––––, 207 L.Ed.2d 1072, (U.S. June 15, 2020). The doctrine traces its origins to "the Supreme Court's...