United States of America v. State of Washington

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
STATE OF WASHINGTON ; J AY
ROBERT I NSLEE , in his official
capacity as Governor of the State of
Washington; J OEL SACKS , in his
official capacity as Director of the
Washington State Department of
Labor and Industries; WASHINGTON
STATE DEPARTMENT OF LABOR &
I NDUSTRIES ,
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

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2 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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).

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4 UNITED STATES V. STATE OF W ASHINGTON
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 Plaintiff-
Appellant.
Noah G. Purcell (argued), Solitor General; Anastasia
Sandstrom, Senior Counsel; Paul Wiedeman, Assistant
Attorney General; Robert W. Ferguson, Attorney General;
Office of the Attorney General, Olympia, Washington; for
Defendants-Appellees.
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.)

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UNITED STATES V. STATE OF W ASHINGTON 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

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6 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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.

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8 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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 non-
discrimination principle.” Dissent at 33 (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 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 “non-
discrimination principle.” To Judge Collins, however,

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10 UNITED STATES V. STATE OF W ASHINGTON
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
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

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UNITED STATES V. STATE OF W ASHINGTON 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).

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12 UNITED STATES V. STATE OF W ASHINGTON
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 non-
discriminatory 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

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UNITED STATES V. STATE OF W ASHINGTON 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

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14 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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]

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16 UNITED STATES V. STATE OF W ASHINGTON
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 non-
discrimination 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. non-
agricultural land in a way that discriminated against the
United States. Section IV of Lewis County did not remand

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UNITED STATES V. STATE OF W ASHINGTON 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

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18 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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

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20 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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

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22 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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.”

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24 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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.

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26 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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

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28 UNITED STATES V. STATE OF W ASHINGTON
‘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.

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UNITED STATES V. STATE OF W ASHINGTON 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

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30 UNITED STATES V. STATE OF W ASHINGTON
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 local-
government-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 non-
discrimination 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.”

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UNITED STATES V. STATE OF W ASHINGTON 31
175 F.3d at 676 n.5 (emphasis added). In the cross-
referenced 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 anti-
discrimination 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

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32 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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

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34 UNITED STATES V. STATE OF W ASHINGTON
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 non-
discrimination 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

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UNITED STATES V. STATE OF W ASHINGTON 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.

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36 UNITED STATES V. STATE OF W ASHINGTON
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 non-
discrimination 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

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UNITED STATES V. STATE OF W ASHINGTON 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.

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38 UNITED STATES V. STATE OF W ASHINGTON
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.”

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UNITED STATES V. STATE OF W ASHINGTON 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).

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40 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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.

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42 UNITED STATES V. STATE OF W ASHINGTON
coverage through the State workers’ compensation fund or
as self-insurers.
C. HB 1723
This case concerns HB 1723’s amendments to the WIIA.
The law applies to “United States department of energy
Hanford site workers” and “Hanford site workers,” defined
as:
[A]ny person, including a contractor or
subcontractor, who was engaged in the
performance of work, either directly or
indirectly, for the United States, regarding
projects and contracts at the Hanford nuclear
site and who worked on the site at the two
hundred east, two hundred west, three
hundred area, environmental restoration
disposal facility site, central plateau, or the
river corridor locations for at least one eight-
hour shift while covered under this title.”
Wash. Rev. Code § 51.32.187(1)(b).4 It is estimated that the
law may cover some 100,000 persons.
HB 1723 creates a “prima facie presumption” for
“United States [DOE] Hanford site workers” that certain
“diseases and conditions” are “occupational diseases” under
the WIIA. Id. § 51.32.187(2)(a); see also id.
§§ 51.32.187(3) (identifying certain conditions),
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).

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UNITED STATES V. STATE OF W ASHINGTON 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

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44 UNITED STATES V. STATE OF W ASHINGTON
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

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UNITED STATES V. STATE OF W ASHINGTON 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

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46 UNITED STATES V. STATE OF W ASHINGTON
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,

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UNITED STATES V. STATE OF W ASHINGTON 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

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48 UNITED STATES V. STATE OF W ASHINGTON
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.”).

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UNITED STATES V. STATE OF W ASHINGTON 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

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50 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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.

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52 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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.

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54 UNITED STATES V. STATE OF W ASHINGTON
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.

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UNITED STATES V. STATE OF W ASHINGTON 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.

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