FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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

D.C. No.

4:18-cv-05189-

SAB

ORDER AND 

AMENDED 

OPINION

Appeal from the United States District Court

for the Eastern District of Washington

Stanley Allen Bastian, District Judge, Presiding

Argued and Submitted July 6, 2020

Seattle, Washington

Filed August 19, 2020

Amended April 15, 2021
2 UNITED STATES V. STATE OF WASHINGTON

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

JR., Circuit Judges, and JAMES DONATO,

*

District Judge.

Order;

Concurrence in Order by Judge Milan D. Smith, Jr.;

Dissent from Order by Judge Collins;

Opinion by Judge Milan D. Smith, Jr.

SUMMARY**

Governmental Immunity

The panel filed an order amending its opinion, denying a 

petition for panel rehearing, and denying on behalf of the 

court a petition for rehearing en banc; and an amended 

opinion affirming the district court’s summary judgment in 

favor of the State of Washington, upholding HB 1723, which 

amended Washington’s workers’ compensation scheme and 

established for workers at the Hanford site – a 

decommissioned federal nuclear production site – a 

presumption that certain conditions and cancers are 

occupational diseases that is rebuttable only by clear and 

convincing evidence.

The United States claimed that HB 1723 impermissibly 

directly regulated and discriminated against the Federal 

* The Honorable James Donato, United States District Judge for the 

Northern District of California, sitting by designation.

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
UNITED STATES V. STATE OF WASHINGTON 3

Government and those with whom it dealt in violation of the 

doctrine of intergovernmental immunity. 

The panel held that HB 1723 fell within the waiver of 40 

U.S.C. § 3172, which authorizes states to apply their 

workers’ compensation laws to federal lands and projects in 

the states in the same way as if the premises were under the 

exclusive jurisdiction of the states. The panel held, 

accordingly, that HB 1723 did not violate the doctrine of 

intergovernmental immunity.

The panel declined to resolve two other issues raised by 

the parties because they were not properly before the court.

Judge M. Smith concurred in the denial of rehearing en 

banc. He wrote that the dissent from rehearing en banc 

disregarded the plain text of 40 U.S.C. § 3172(a) and 

misread the relevant precedent, and the majority opinion did 

nothing more than apply the full text of the federal statute at 

issue and correctly applied the relevant case law.

Judge Collins, joined by Judges Callahan, Bennett, and 

Bress, dissented from the denial of rehearing en banc. He 

wrote that the State of Washington lacked any authority to 

impose special workers’ compensation rules on federal 

facilities, and this court had no authority to construe a statute 

to mean the exact opposite of what its words said and no 

authority to ignore a directly controlling Supreme Court 

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

(1988).
4 UNITED STATES V. STATE OF WASHINGTON

COUNSEL

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 PlaintiffAppellant.

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.

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.)
UNITED STATES V. STATE OF WASHINGTON 5

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 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.

I

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 
6 UNITED STATES V. STATE OF WASHINGTON

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., 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 
UNITED STATES V. STATE OF WASHINGTON 7

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.

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 

1 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.
8 UNITED STATES V. STATE OF WASHINGTON

hypothetical state-owned Hanford site, it can do so for a 

federally-owned Hanford site. This shows that Washington 

is applying 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 similarly-situated 

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 Washington 
UNITED STATES V. STATE OF WASHINGTON 9

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 nondiscrimination principle.” Dissent at 33 (emphasis in 

original).

Judge Collins puts the cart before the horse. He discusses 

§ 3172(a)’s alleged “non-discrimination” or “antidiscrimination” 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 said that § 3172(a) contains a “nondiscrimination principle.” To Judge Collins, however, 
10 UNITED STATES V. STATE OF WASHINGTON

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

2 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 
UNITED STATES V. STATE OF WASHINGTON 11

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

II

My dissenting colleague opines that we erred in applying 

Goodyear and Lewis County. Respectfully, we did not.

A

In Goodyear, the Supreme Court handed down a broad 

holding:

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.

3 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 35–

36. 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).
12 UNITED STATES V. STATE OF WASHINGTON

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 nondiscriminatory 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. 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 
UNITED STATES V. STATE OF WASHINGTON 13

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

4 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.”).

5 Judge Collins nonetheless alleges that the Supreme Court did 

require a non-discrimination principle by writing, “On 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.” 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 
14 UNITED STATES V. STATE OF WASHINGTON

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 of workers at the Hanford site. As we 

stated in the opinion:

[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 

§ 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.
UNITED STATES V. STATE OF WASHINGTON 15

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.

B

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 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] 
16 UNITED STATES V. STATE OF WASHINGTON

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 non-discrimination 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-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. nonagricultural land in a way that discriminated against the 

United States. Section IV of Lewis County did not remand 
UNITED STATES V. STATE OF WASHINGTON 17

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 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 
18 UNITED STATES V. STATE OF WASHINGTON

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 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.
UNITED STATES V. STATE OF WASHINGTON 19

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 tailor-made workers’-compensation rules 

bear no resemblance to the normal ones that apply to 

employees at any other facility in Washington State.

The panel conceded that, absent “clear and 

unambiguous” congressional authorization for such blatant 
20 UNITED STATES V. STATE OF WASHINGTON

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 receive if working for a 

wholly private facility.” Id. Goodyear thus unambiguously 

required this court to strike down the Washington statute.
UNITED STATES V. STATE OF WASHINGTON 21

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.

I

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 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 
22 UNITED STATES V. STATE OF WASHINGTON

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 

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 
UNITED STATES V. STATE OF WASHINGTON 23

discriminatory workers’ compensation rules that impose 

uniquely burdensome liability regimes only on the Federal 

Government. Id. at 861 (citations omitted); see also id. at 

861–66.

II

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 nuclear 

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.”
24 UNITED STATES V. STATE OF WASHINGTON

A

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 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 
UNITED STATES V. STATE OF WASHINGTON 25

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 by 

§ 3172(a), and it is therefore invalid. Goodyear, 486 U.S. 

at 180. This case is that simple.

B

The panel nonetheless got this straightforward case 

wrong by making three serious mistakes.

1 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.
26 UNITED STATES V. STATE OF WASHINGTON

1

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 enhanced-award 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 enhanced-award 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 work-related injury, 

without regard to the employer’s fault.” 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 
UNITED STATES V. STATE OF WASHINGTON 27

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 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 

2 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 
28 UNITED STATES V. STATE OF WASHINGTON

‘work[ers’] compensation laws’ in § 290, of course, is not 

infinitely elastic”). The panel’s holding that § 3172(a) 

contains no anti-discrimination 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 12–13. 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 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.

2

Second, the panel held that its reading of § 3172(a) was 

supported by our decision in United States v. Lewis County, 

long as in drawing these distinctions they do not discriminate against the 

Federal Government.
UNITED STATES V. STATE OF WASHINGTON 29

175 F.3d 671 (9th Cir. 1999). See 971 F.3d at 863–64. 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 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 
30 UNITED STATES V. STATE OF WASHINGTON

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 localgovernment-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 nondiscrimination 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 

privately-owned 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, 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.” 
UNITED STATES V. STATE OF WASHINGTON 31

175 F.3d at 676 n.5 (emphasis added). In the crossreferenced 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 antidiscrimination requirement. And it makes all the more 

troubling the fact that the panel’s opinion in this case did not 

acknowledge Lewis County’s anti-discrimination 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 anti-discrimination 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 
32 UNITED STATES V. STATE OF WASHINGTON

property, and Lewis County noted that that requirement was 

satisfied (except as to the one issue it remanded). The 

panel’s elimination of any non-discrimination requirement 

from § 3172 thus squarely conflicts with our decision in 

Lewis County.

3

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.

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 
UNITED STATES V. STATE OF WASHINGTON 33

(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 

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 
34 UNITED STATES V. STATE OF WASHINGTON

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 nondiscrimination 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.

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 
UNITED STATES V. STATE OF WASHINGTON 35

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 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

3 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.
36 UNITED STATES V. STATE OF WASHINGTON

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 nondiscrimination requirement could have been stated more 

clearly. The question is, conversely, whether Congress 

provided “‘clear and unambiguous’ authorization” 

affirmatively allowing such discrimination. 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 
UNITED STATES V. STATE OF WASHINGTON 37

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 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.
38 UNITED STATES V. STATE OF WASHINGTON

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, 

1 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.”
UNITED STATES V. STATE OF WASHINGTON 39

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., 745 P.2d 1295, 1301 

(Wash. 1987).
40 UNITED STATES V. STATE OF WASHINGTON

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, 

2 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 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.

3 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 
UNITED STATES V. STATE OF WASHINGTON 41

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 

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.
42 UNITED STATES V. STATE OF WASHINGTON

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 eighthour 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), 

4 “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).
UNITED STATES V. STATE OF WASHINGTON 43

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 
44 UNITED STATES V. STATE OF WASHINGTON

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, —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 
UNITED STATES V. STATE OF WASHINGTON 45

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. Kerr-McGee 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 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 
46 UNITED STATES V. STATE OF WASHINGTON

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 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.

5 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, 
UNITED STATES V. STATE OF WASHINGTON 47

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 

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 

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.

6 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 
48 UNITED STATES V. STATE OF WASHINGTON

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. 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 183–85. 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.

discretionary power absent a clear indication from the context that 

Congress used the word in a mandatory sense.”).
UNITED STATES V. STATE OF WASHINGTON 49

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 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 
50 UNITED STATES V. STATE OF WASHINGTON

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 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 

7 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.
UNITED STATES V. STATE OF WASHINGTON 51

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 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. 
52 UNITED STATES V. STATE OF WASHINGTON

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 

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. 
UNITED STATES V. STATE OF WASHINGTON 53

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. 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 a version of HB 1723 that did not 

involve the Federal Government and where 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.

8 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.
54 UNITED STATES V. STATE OF WASHINGTON

III. Remaining Issues

Notwithstanding the foregoing, we briefly explain why 

we decline to resolve two other issues raised by the parties.

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 

9 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/co

mpliance/charts/hanford.htm.
UNITED STATES V. STATE OF WASHINGTON 55

§ 3172 to resolve those claims. See Nw. Austin Mun. Util. 

Dist. No. One v. Holder, 557 U.S. 193, 197 (2009) (“Our 

usual practice 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.