United States v. Washington

994 F.3d 994

UNITED STATES of America, Plaintiff-Appellant,

v.State of WASHINGTON; Jay Robert Inslee, in his official capacity as Governor of the State of Washington; Joel Sacks, in his official capacity as Director of the Washington State Department of Labor and Industries; Washington State Department of Labor & Industries, Defendants-Appellees.

No. 19-35673

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 6, 2020 Seattle, Washington

Filed August 19, 2020

Amended April 15, 2021

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 865 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. )

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 1005. "Statutory interpretation, as we always say, begins with the text." Ross v. Blake , ––– U.S. ––––, 136 S. Ct. 1850, 1856, 195 L.Ed.2d 117 (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, 131 S.Ct. 1325, 179 L.Ed.2d 379 (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 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 1005.

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 1019. 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 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 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 1009. Our reading of the statute gives meaning to "every word Congress used." Reiter v. Sonotone Corp. , 442 U.S. 330, 339, 99 S.Ct. 2326, 60 L.Ed.2d 931 (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, 71 S.Ct. 515, 95 L.Ed. 566 (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 1009 (emphasis in original).

Judge Collins puts the cart before the horse. He discusses § 3172(a) ’s alleged "non-discrimination" or "anti-discrimination" principle numerous times in his dissent. See Dissent at 1007, 1008, 1008–09, 1008–09, 1009–10, 1010, 1011. 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, 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 non-federal facility, in line with the plain text of the statute.

Perhaps Judge Collins is hoping that by repeating the...