Wednesday, April 20, 2022

U.S. v. Washington #2 - Post on the Oral Argument

I have posted a recap of the Hanford oral argument on the SCOTUS blog.


It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers’ compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.


The state’s old law, H.B. 1723, was aimed at federal contract workers who got sick after helping clean up the Hanford nuclear site in southern Washington. It created a presumption that certain conditions suffered by those workers were “occupational diseases.” The new law, S.B. 5890, expanded the presumption beyond federal workers; the presumption now applies to “all personnel working at a radiological hazardous waste facility.” Because the merits of the case concern whether Washington can constitutionally discriminate against federal contractors by utilizing a causation standard making it easier for those employees to obtain workers’ compensation awards (with the federal government as de facto self-insurer of the awards), a problem of mootness arose. Discrimination — if that is what it was — ceased to exist as soon as the new law took effect on March 11, 2022.


Still, as discussed at length during Monday’s argument, the two statutes might not be coextensive in the benefits they offer to covered workers. As Justice Clarence Thomas observed, some statutory beneficiaries under the old law might prefer its protections. Some workers engaged in arguably less hazardous work may have been covered under that law but not under the new law. If some workers’ compensation claims remain live under the old law, then the case might not be moot after all. But Tera Heintz, arguing for Washington, assured the justices that the new law eliminates that possibility because it applies retroactively. The result, Heintz said, is that the 66 pending claims and 140 closed claims are now governed exclusively by the new law. To the extent the United States seeks declaratory and injunctive relief from the old law, no such relief could be available.

The rest of the post is here.

Michael C. Duff

April 20, 2022 | Permalink | Comments (0)

Friday, April 15, 2022

Workers' Compensation at the Supreme Court - The Hanford Reservation & Disease Causation

I've been retained by the SCOTUS blog to do a preview, oral argument recap, and eventual opinion analysis in the case U.S. v Washington that will be aegued in the Court this coming Monday morning. The case is full of issues likely to be of interest to workers' compensation afficiandos. I'll let my post speak for itself:

Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.


1936 federal law waives federal immunity from state workers’ compensation laws on federal land and projects. Congress passed the law after the Supreme Court held that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver authorizes state workers’ compensation authorities to “apply [state workers’ compensation 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.”


The original purpose for the extension of state workers’ compensation to federal land and projects was to ensure that non-federal workers involved in “federal work” would be covered by some form of workers’ compensation. Without this extension of coverage, the workers might be left without such protection and be forced to rely on a long, expensive civil tort case to obtain a remedy for workplace injury or disease.


Workers’ compensation laws and regulations provide workers with periodic cash benefits and payment for medical treatment for diseases and injuries suffered while working. Diseases have historically been very difficult to cover under workers’ compensation because of causation requirements. Many diseases may have both work and non-work causes. United States v. Washington implicitly contemplates such situations.


The underlying dispute in the case is whether the federal government must continue to pay the workers’ compensations claims of certain workers employed by private federal contractors. These workers were and continue to be at high risk of contracting diseases caused by workplace exposure to radioactivity and toxins on the Hanford nuclear reservation, a federally controlled tract of land located on the Columbia River in the state of Washington.


The Hanford reservation is a large, 586-square-mile facility with a storied history. Built in 1943 as part of the Manhattan Project, the site contained the first full-scale plutonium production reactor in the world. Plutonium produced at the site was used in the atomic bomb detonated over Nagasaki. The reservation, which also played a role in the Cold War, was decommissioned in 1989 and is being cleaned and remediated, in substantial part by the contract workers that are at the center of the case. It is obviously an ultra-hazardous place to work. Hanford’s cleanup is expected to take decades, and many workers are likely to become very sick during the effort. Some will die. Their workers’ compensation claims are likely to be very expensive, which raises the stakes in the case.


The federal government, reimbursing the costs of certain of its Hanford contractors, paid the claims of the workers without objection until Washington modified its workers’ compensation law in 2018 to make it easier to prove disease causation in Hanford-related claims than had been the case under prior law.


You can read the rest of the SCOTUS blog post here.

Michael C. Duff

April 15, 2022 | Permalink | Comments (1)