United States v. Washington

P R E L I M I N A R Y P R I N T
Volume 596 U. S. Part 2
Pages 832–844
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 21, 2022
REBECCA A. WOMELDORF
reporter of decisions
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N O T I C E : This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
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pio@supremecourt.gov, of any typographical or other formal errors.

832 OCTOBER
TERM, 2021
Syllabus
UNITED STATES v. WASHINGTON et al.
certiorari
to the united states court of appeals for
the ninth circuit
No. 21–404. Argued April 18, 2022—Decided June 21, 2022
In 2018, Washington enacted a workers' compensation law that applied
only to certain workers at a federal facility in the State who were “en-
gaged in the performance of work, either directly or indirectly, for the
United States.” Wash. Rev. Code § 51.32.187(1)(b). The facility, known
as the Hanford site, was once used by the Federal Government to de-
velop and produce nuclear weapons, and is now undergoing a complex
decontamination process. Most workers involved in this cleanup proc-
ess are federal contract workers—people employed by private compa-
nies under contract with the Federal Government. A smaller number
of workers involved in the cleanup include State employees, private em-
ployees, and federal employees who work directly for the Federal Gov-
ernment. As compared to Washington's general workers' compensation
scheme, the law makes it easier for federal contract workers at Hanford
to establish their entitlement to workers' compensation, thus increasing
workers' compensation costs for the Federal Government.
The United States brought suit against Washington, arguing that
Washington's law violates the Supremacy Clause by discriminating
against the Federal Government. The District Court concluded that
the law was constitutional because it fell within the scope of a federal
waiver of immunity contained in 40 U. S. C. § 3172. The Ninth Circuit
affrmed.
Held: Washington's law facially discriminates against the Federal Govern-
ment and its contractors. Because § 3172 does not clearly and unambig-
uously waive the Federal Government's immunity from discriminatory
state laws, Washington's law is unconstitutional under the Supremacy
Clause. Pp. 837–844.
(a) This case is not moot. After the Court granted certiorari, Wash-
ington enacted a new statute which changed the scope of the original
law such that the workers' compensation scheme no longer applied ex-
clusively to Hanford site workers who work for the United States. But
a case is not moot unless it is impossible for the Court to grant any
effectual relief. Mission Product Holdings, Inc. v. Tempnology, LLC,
587 U. S. –––, –––. The United States asserts that a ruling in its favor
will allow it to recoup or to avoid paying millions of dollars in workers'
compensation claims. Washington disagrees, arguing that the new
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833
Syllabus
statute applies retroactively and is broad enough to encompass any
clai
m fled under the earlier law. But it is not the Court's practice to
interpret statutes in the frst instance, Zivotofsky v. Clinton, 566 U. S.
189, 201, nor does the Court know how Washington's state courts will
interpret the new law. It is thus not impossible for the United States
to recover money if the Court rules in its favor, and the case is not
moot. Pp. 837–838.
(b) Since McCulloch v. Maryland, 4 Wheat. 316, this Court has inter-
preted the Supremacy Clause as prohibiting States from interfering
with or controlling the operations of the Federal Government. This
constitutional doctrine—often called the intergovernmental immunity
doctrine—has evolved to bar state laws that either regulate the United
States directly or discriminate against the Federal Government or its
contractors. A state law discriminates against the Federal Govern-
ment or its contractors if it “single[s them] out” for less favorable “treat-
ment,” Washington v. United States, 460 U. S. 536, 546, or if it regulates
them unfavorably on some basis related to their governmental “status,”
North Dakota v. United States, 495 U. S. 423, 438 (plurality opinion).
Washington's law violates these principles by singling out the Federal
Government for unfavorable treatment. The law explicitly treats fed-
eral workers differently than state or private workers, and imposes
costs upon the Federal Government that state and private entities do
not bear. The law thus violates the Supremacy Clause unless Congress
has consented to such regulation through waiver. Pp. 838–839.
(c) Congress waives the Federal Government's immunity “only when
and to the extent there is a clear congressional mandate.” Hancock v.
Train, 426 U. S. 167, 179. Washington argues that Congress has waived
federal immunity from state workers' compensation laws on federal
lands and projects through § 3172(a). Section 3172(a) says that “[t]he
state authority charged with enforcing and requiring compliance with
the state workers' compensation laws . . . may apply [those] laws to all
land and premises in the State which the Federal Government owns,”
as well as “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.” Washington reads the statute's language
broadly to effectuate a complete waiver of intergovernmental immunity
as to all workers' compensation laws on federal lands and projects, in-
cluding workers' compensation laws that discriminate against the Fed-
eral Government. But one can reasonably read the statute as contain-
ing a narrower waiver of immunity, namely, as only authorizing a State
to extend its generally applicable state workers' compensation laws to
federal lands and projects within the State. Section 3172's waiver thus

834 UNITED
STATES v. WASHINGTON
Syllabus
does not “clear[ ly] and unambiguous[ ly]” authorize a State to enact a
discr
iminatory law that facially singles out the Federal Government for
unfavorable treatment. Goodyear Atomic Corp. v. Miller, 486 U. S.
174, 180. Pp. 839–842.
(d) Wash i ng ton's arg uments to the contrary are unconv i nci ng.
Washington emphasizes that the waiver statute allows a State to apply
its workers' compensation laws to federal premises “as if the premises
were under the exclusive jurisdiction of the State.” § 3172(a). But
those words follow the phrase “in the same way and to the same extent”
and, read together, the language could plausibly be interpreted to allow
only the extension of generally applicable workers' compensation laws to
federal premises. The statute thus does not clearly and unambiguously
permit the discrimination contained in Washington's “federal workers
only” law. Washington next points to other congressional waivers of
intergovernmental immunity that explicitly maintain the constitutional
prohibition on discriminatory state laws. But the fact that Congress
more explicitly preserved the immunity in other contexts does not
mean that Congress clear ly waived it i n § 3172(a). Fi na l ly,
Washington relies on Goodyear Atomic, but that decision said nothing
about laws—such as the one here—that explicitly discriminate against
the Federal Government. If anything, statements from Goodyear
Atomic tend to support, not undermine, the Court's decision today.
Pp. 842–844.
994 F. 3d 994, reversed and remanded.
Breyer, J., delivered the opinion for a unanimous Court.
Deputy Solicitor General Stewart argued the cause for the
United States. With him on the briefs were Solicitor Gen-
eral Prelogar, Principal Deputy Assistant Attorney Gen-
eral Boynton, Christopher G. Michel, Mark B. Stern, and
John S. Koppel.
Tera M. Heintz, Deputy Solicitor General of Washington,
argued the cause for respondents. With her on the briefs
were Robert W. Ferguson, Attorney General, Noah G. Pur-
cell, Solicitor General, and Peter B. Gonick, Deputy Solici-
tor General.*
*Bobby G. Burke and Joshua T. Gillelan, II, fled a brief for the Work-
ers' Injury Law & Advocacy Group as amicus curiae.
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835
Opinion of the Court
Justice Breyer delivered the opinion of the Court.
The
Constitution's Supremacy Clause generally immunizes
the Federal Government from state laws that directly regu-
late or discriminate against it. See South Carolina v.
Baker, 485 U. S. 505, 523 (1988). Congress, however, can au-
thorize such laws by waiving this constitutional immunity.
See Goodyear Atomic Corp. v. Miller, 486 U. S. 174, 180
(1988).
This case concerns state workers' compensation laws.
Congress has enacted a statute that waives the Federal
Government's constitutional immunity insofar as a “state au-
thority charged with enforcing . . . the state workers' com-
pensation laws . . . appl[ies] the laws” to land or projects
“belonging to the [Federal] Government, in the same way
and to the same extent as if the premises were under
the exclusive jur isdic ti on of the St ate. ” 40 U. S. C.
§ 3172(a).
The question before us is whether a Washington State
workers' compensation law falls within the scope of this con-
gressional waiver. The state law, by its terms, applies only
to federal workers who work at one federal facility in Wash-
ington. The law makes it easier for these workers to obtain
workers' compensation, thus raising workers' compensation
costs for the Federal Government. We conclude that the
state law discriminates against the Federal Government and
falls outside the scope of Congress' waiver. We therefore
hold that the law is unconstitutional under the Supremacy
Clause.
I
During World War II, the Federal Government acquired a
large tract of land in Washington State known as the Han-
ford site. The Government used the site to develop and
produce nuclear weapons, generating a massive amount of
chemical and radioactive waste. After the Cold War, the
Federal Government began the process of decommissioning
and cleaning up the nuclear site. The process has proved to
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836 UNITED
STATES v. WASHINGTON
Opinion of the Court
be enormously complex. It is expected to require decades
of
time and billions of dollars. Most of the workers involved
in the cleanup process are federal contract workers—people
employed by private companies under contract with the Fed-
eral Government. A smaller number of workers involved
in the cleanup project include federal employees who work
directly for the Federal Government, state employees who
work for the State of Washington, and private employees
who work for private companies not under contract with the
Federal Government.
In 2018, Washington enacted a workers' compensation law
that, by its terms, applied only to Hanford site workers
“engaged in the performance of work, either directly or
i ndirec tly, for the United St ates. ” Wash. Rev. Code
§ 51.32.187(1)(b). Despite the literal language of this stat-
ute, another provision of Washington law makes clear—and
all parties here agree—that the statute applies only to fed-
eral contract workers and not to federal employees. See
§ 51.12.060; Brief for United States 8, n. 4; Brief for Respond-
ents 13. This is because Congress' waiver of immunity does
not extend to those whom the Federal Government employs
directly. See 40 U. S. C. § 3172(c).
As compared to the general state workers' compensation
regime, Washington's law makes it easier for federal contract
workers at Hanford to establish their entitlement to workers'
compensation. In particular, the statute creates a causal
presumption that certain diseases and illnesses are caused
by the cleanup work at Hanford. See Wash. Rev. Code
§§ 51.32.187(2), (3), (4). The presumption is rebuttable only
by clear and convincing evidence. § 51.32.187(2)(b). And
the presumption lasts for a worker's entire life, even after
the worker's time at Hanford ends. § 51.32.187(5)(a). Be-
cause the Federal Government pays workers' compensation
claims for federal contractors at Hanford, see App. 48–50,
Washington's law increases workers' compensation costs for
the Federal Government.
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837
Opinion of the Court
The United States brought suit against Washington, ar-
g
uing that its law violated the Supremacy Clause by discrim-
inating against the Federal Government. The District
Court concluded that the state law fell within the scope of
the federal waiver of immunity contained in 40 U. S. C. § 3172
and was therefore constitutional. The Ninth Circuit af-
frmed. See 994 F. 3d 994, 1012 (2020). We granted certio-
rari to determine the constitutionality of Washington's law.
II
Washington frst claims that this case is moot. After we
granted certiorari, Washington enacted a new statute, see S.
5890, 67th Leg., Reg. Sess. (2022), which changed the scope
of the original law. The law's causal presumption no longer
applies exclusively to Hanford site workers who “work,
either direc tly or i ndirec tly, for the United St ates. ”
§ 51.32.187(1)(b). Instead, under the new law, the presump-
tion applies more broadly to any worker “working at a radio-
logical hazardous waste facility.” 2022 Wash. Sess. Laws
p. 437. This new law, Washington argues, does not discrimi-
nate against the Federal Government, and its enactment
thus moots the present dispute.
A case is not moot, however, unless “ `it is impossible for
[us] to grant any effectual relief.' ” Mission Product Hold-
ings, Inc. v. Tempnology, LLC, 587 U. S. –––, ––– (2019)
(quoting Chafn v. Chafn, 568 U. S. 165, 172 (2013)). If there
is money at stake, the case is not moot. See 587 U. S., at
–––. The United States asserts that, if we rule in its favor,
it will either recoup or avoid paying between $17 million and
$37 million in workers' compensation claims that lower
courts have awarded under the earlier law. See Response
in Opposition to Suggestion of Mootness 11–12. Some of
these claims are not yet fnal because they are still on appeal.
See Reply in Support of Suggestion of Mootness 12. Wash-
ington argues that, even if the United States wins, the Gov-
ernment will not recover or avoid any payments because the
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838 UNITED
STATES v. WASHINGTON
Opinion of the Court
new statute applies retroactively and is broad enough to en-
compass
any claim fled under the earlier law. But it is not
our practice to interpret statutes in the frst instance, Zivo-
tofsky v. Clinton, 566 U. S. 189, 201 (2012), and we decline
to do so here by deciding the retroactivity or breadth of
Washington's new law. Nor do we know how Washington's
state courts will resolve these questions. It is thus not “im-
possible” that the United States will recover money if we
rule in its favor, and this case is not moot.
III
A
In McCulloch v. Maryland, 4 Wheat. 316 (1819), this
Court held unconstitutional Maryland's effort to tax the
Bank of the United States when Maryland imposed no com-
parable tax on any other bank within the State. Id., at 425–
437. Chief Justice John Marshall explained that, under the
Supremacy Clause, “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.” Id., at 436. The Court thus inter-
preted the Constitution as prohibiting States from interfer-
i ng w ith or control l i ng the operati ons of the Federa l
Government.
Over time this constitutional doctrine, often called the in-
tergovernmental immunity doctrine, evolved. Originally
we understood it as barring any state law whose “effect . . .
was or might be to increase the cost to the Federal Govern-
ment of performing its functions,” including laws that im-
posed costs on federal contractors. United States v. County
of Fresno, 429 U. S. 452, 460 (1977). We later came to under-
stand the doctrine, however, as prohibiting state laws that
either “regulat[e] the United States directly or discriminat[e]
against the Federal Government or those with whom it
deals” (e. g., contractors). North Dakota v. United States,
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495 U. S. 423, 435 (1990) (plurality opinion) (emphasis added);
i
d., at 444 (Scalia, J., concurring in judgment) (noting that
“[a]ll agree” with this aspect of the plurality opinion); see
also Baker, 485 U. S., at 523; County of Fresno, 429 U. S., at
462–463. As to the latter, discrimination-related prohibi-
tion, a state law is thus no longer unconstitutional just be-
cause it indirectly increases costs for the Federal Govern-
ment, so long as the law imposes those costs in a neutral,
nondiscriminatory way.
We have said that a state law discriminates against the
Federal Government or its contractors if it “single[s them]
out” for less favorable “treatment,” Washington v. United
States, 460 U. S. 536, 546 (1983), or if it regulates them unfa-
vorably on some basis related to their governmental “sta-
tus,” North Dakota, 495 U. S., at 438 (plurality opinion).
Washington's law violates these principles by singling out
the Federal Government for unfavorable treatment. On its
face, the law applies only to a “person, including a contractor
or subcontractor, who was engaged in the performance of
work, either directly or indirectly, for the United States.”
§ 51.32.187(1)(b). The law thereby explicitly treats federal
workers differently than state or private workers. Cf. Daw-
son v. Steager, 586 U. S. –––, ––– (2019) (“Whether a State
treats similarly situated state and federal employees differ-
ently depends on how the State has defned the favored
class”). And, in doing so, the law imposes upon the Federal
Government costs that state or private entities do not bear.
The law consequently violates the Supremacy Clause unless
Congress has consented to such regulation through waiver.
B
We will fnd that Congress has authorized regulation that
would otherwise violate the Federal Government's intergov-
ernmental immunity “only when and to the extent there is a
clear congressional mandate.” Hancock v. Train, 426 U. S.
167, 179 (1976) (internal quotation marks omitted). In other
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840 UNITED
STATES v. WASHINGTON
Opinion of the Court
words, Congress must “provid[e] `clear and unambiguous' au-
thor
ization for” this kind of state regulation. Goodyear
Atomic, 486 U. S., at 180 (quoting EPA v. California ex rel.
State Water Resources Control Bd., 426 U. S. 200, 211
(1976)).
Washington argues that Congress has provided such au-
thorization by waiving federal immunity from state workers'
compensation laws on federal lands and projects. The statu-
tory waiver Washington relies upon, 40 U. S. C. § 3172(a),
says that “[t]he state authority charged with enforcing and
requiring compliance with the state workers' compensation
laws . . . may apply [those] laws to all land and premises in
the State which the Federal Government owns,” as well as
“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.” Washington
reads the statute's language broadly to “effectuat[e] a com-
plete waiver of intergovernmental immunity as to workers'
compensation on federal lands or projects.” Brief for Re-
spondents 34 (emphasis added). And Washington asserts
that it has acted within the scope of this waiver by “apply-
[ing]” a “state workers' compensation law” to federal “lands”
and “projects” at the Hanford site just “as if the premises
were under the exclusive jurisdiction of the State.”
In our view, however, § 3172's waiver does not “clearly and
unambiguously” authorize a State to enact a discriminatory
law that facially singles out the Federal Government for un-
favorable treatment. One can reasonably read the statute
as containing a narrower waiver of immunity, namely, as only
authorizing a State to extend its generally applicable state
workers' compensation laws to federal lands and projects
within the State.
For one thing, the statute requires state enforcement au-
thorities to apply state laws to federal premises “in the same
way and to the same extent as if the premises were under
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Opinion of the Court
the exclusive jurisdiction of the State.” § 3172(a). The “in
the
same way and to the same extent” language suggests
that the statute contemplates laws that could apply to state,
as well as to federal, premises and employees.
The statute also gives to “[t]he state authority charged
with enforcing . . . the state workers' compensation laws”
the power to “apply the laws to” federal lands and projects.
Ibid. (emphasis added). This language seems to contem-
plate application of state provisions that apply at least in
part to nonfederal (i. e., state and private) workers. After
all, those are the laws that state enforcement authorities or-
dinarily enforce.
Further, the title of the statutory waiver provision refers
to the “Extension of state workers' compensation laws to
buildings, works, and property of the Federal Government.”
§ 3172 (emphasis added; boldface deleted). The word “ex-
tension” suggests application to federal premises of a State's
generally applicable workers' compensation laws—laws that
have some independent sig nificance beyond the federal
context.
Finally, preventing discrimination against the Federal
Government lies at the heart of the Constitution's intergov-
ernmental immunity doctrine. See County of Fresno, 429
U. S., at 462–464; Washington, 460 U. S., at 545–546. With-
out the prohibition on discrimination, what prevents a State
from imposing unduly high costs on the Federal Government
for the beneft of the State's own citizens? To put the point
more specifcally, if discrimination is permissible here, what
prevents Washington from bestowing a windfall upon its res-
idents through an especially generous workers' compensation
scheme fnanced exclusively by the Federal Government?
Washington's voters would not mind; they would not pay for
the costs of the scheme. And some Washington residents—
those working for the Federal Government—would beneft
from it. The nondiscrimination principle provides a political
check on the State's ability to impose such laws by ensuring
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842 UNITED
STATES v. WASHINGTON
Opinion of the Court
that the State's own citizens shoulder at least some of the
costs.
See McCulloch, 4 Wheat., at 428, 435–436. Dis-
criminatory provisions like the one before us contain no such
ballot-box safeguard.
That fact reinforces the need to read waivers of intergov-
ernmental immunity narrowly, at least where a State claims
that Congress has waived immunity from discriminatory
state laws. In our view, for the reasons we have stated, the
statutory language of § 3172's waiver permits a reading that
does not allow discrimination against the Federal Govern-
ment. The waiver thus does not “ `clear[ly] and unambigu-
ous[ly]' ” authorize Washington's discriminatory law. Good-
year Atomic, 486 U. S., at 180; cf. FAA v. Cooper, 566 U. S.
284, 299 (2012) (noting that a statute does not “unequivo-
cally” waive Federal Government's sovereign immunity if “it
is plausible to read the statute” differently).
C
We find Washing ton's other arguments unconvincing.
Washington emphasizes one phrase in the waiver statute,
namely, the phrase that allows a State to apply its workers'
compensation laws to federal premises “as if the premises
were under the exclusive jur isdic ti on of the St ate. ”
§ 3172(a). This phrase, however, appears immediately after
the “in the same way and to the same extent” language.
Ibid. And, as we explained above, reading the two clauses
together, the statute could plausibly be interpreted to allow
only the extension of generally applicable workers' compen-
sation laws to federal premises. It thus does not clearly and
unambiguously permit the kind of discrimination that Wash-
ington's “federal workers only” law contains.
Washington also points to other congressional waivers of
intergovernmental immunity that explicitly maintain the
constitutional prohibition against discriminatory state laws.
Congress, for example, has waived immunity from state tax-
ation of a federal offcer, but only “if the taxation does not
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843
Opinion of the Court
discriminate against the offcer . . . because of the source of
the
pay or compensation.” 4 U. S. C. § 111(a). Congress
has also waived immunity from the application of certain
state environmental laws to federal facilities, but only if the
law does not “apply any standard or requirement to such
facilities which is more stringent than” the standards appli-
cable to nonfederal facilities. 42 U. S. C. § 9620(a)(4). The
waiver statute here, Washington points out, does not contain
any similarly explicit antidiscrimination language.
This fact, however, does not tip the balance suffciently
in Washington's favor. As we have explained, preventing
discrimination against the Federal Government is a core as-
pect of the intergovernmental immunity doctrine. This im-
munity prohibits States from enacting discriminatory laws
unless Congress clearly and unambiguously waives it. See
Goodyear Atomic, 486 U. S., at 180. The fact that Congress
more explicitly preserved the immunity in other contexts
does not mean that Congress clearly waived it here. Nor
does the lack of an explicit antidiscrimination reference con-
vert an ambiguous statutory waiver into one that unambigu-
ously authorizes discrimination. Indeed, Washington points
to no waiver statute that courts have interpreted as permit-
ting the kind of explicit discrimination that Washington's law
contains. Given that broader context, Congress' explicit
antidiscrimination language in the tax and environmental
waivers as much suggests Congress' general hesitation to
allow discrimination as it suggests that Congress authorized
it here.
Finally, Washington seeks support from our decision in
Goodyear Atomic. The issue in that case, however, con-
cerned the scope of the phrase “ `workmen's compensation
laws' ” in § 3172's substantively-identical predecessor statute.
See 486 U. S., at 183. Specifcally, the question was whether
that phrase encompassed state laws that permitted “supple-
mental” workers' compensation awards or only state laws
that permitted “standard” awards. Ibid. We held that the
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844 UNITED
STATES v. WASHINGTON
Opinion of the Court
phrase encompassed laws permitting supplemental awards.
See
ibid. (stating that the statute “places no express limita-
tion on the type of workers' compensation scheme that is
authorized”). But in doing so, we said nothing about laws
that explicitly discriminate against the Federal Government.
Rather, we wrote that, “[o]n its face,” the waiver statute
“compels the same workers' compensation award for an em-
ployee injured at a federally owned facility as the employee
would receive if working for a wholly private facility.” Id.,
at 183–184. We added that it was “clear” from the statute's
text “that Congress intended” state workers' compensation
laws “to apply to federal facilities `to the same extent' that
they apply to private facilities within the State.” Id., at 185.
These statements from Goodyear Atomic tend to support,
not undermine, our conclusion today.
***
Washington's law facially discriminates against the Fed-
eral Government and its contractors. Because § 3172 does
not clearly and unambiguously waive the Government's im-
munity from discriminatory state laws, Washington's law is
unconstitutional under the Supremacy Clause. The Ninth
Circuit's conclusion to the contrary is reversed, and the case
is remanded for further proceedings consistent with this
opinion.
It is so ordered.
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Reporter’s Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
None