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The Supreme Court of US holds that §3172 of Washington’s law facially discriminates against the federal government and its contractors because it does not clearly and unambiguously waive the government’s immunity from discriminatory state laws, thus it is unconstitutional

MMB Advocates > Uncategorized  > The Supreme Court of US holds that §3172 of Washington’s law facially discriminates against the federal government and its contractors because it does not clearly and unambiguously waive the government’s immunity from discriminatory state laws, thus it is unconstitutional

The Supreme Court of US holds that §3172 of Washington’s law facially discriminates against the federal government and its contractors because it does not clearly and unambiguously waive the government’s immunity from discriminatory state laws, thus it is unconstitutional


 United States v Washington et al

No. 21–404

Supreme Court of the United States

Breyer, SCJ

June 21, 2022

Reported by Faith Wanjiku and Bonface Nyamweya

Download the Decision

Devolution-state law vis-a-vis federal law- federal government’s immunity from discriminatory state laws- discriminatory state laws- where the respondent state enacted a workers’ compensation law that applied only to certain workers at a federal facility in the state who were engaged in the performance of work, either directly or indirectly, for the petitioner- where the petitioner brought suit against the respondent state, arguing that the respondent state’s law violated the supremacy clause by discriminating against the federal government- whether the respondent state workers’ compensation law fell within the scope of the congressional waiver on the federal government’s constitutional immunity contained in 40 USC §3172- 40 USC §3172, sections a, b, and c.

Brief facts:

In 2018, the respondent state enacted a workers’ compensation law that applied only to certain workers at a federal facility in the state who were engaged in the performance of work, either directly or indirectly, for the petitioner. The facility, known as the Hanford site, was once used by the federal government to develop and produce nuclear weapons, and was then undergoing a complex decontamination process. Most workers involved in that cleanup process were federal contract workers—people employed by private companies under contract with the federal government.

A smaller number of workers involved in the cleanup include state employees, private employees, and federal employees who worked directly for the federal government. As compared to the respondent state’s general workers’ compensation scheme, the law made it easier for federal contract workers at Hanford to establish their entitlement to workers’ compensation, thus increasing workers’ compensation costs for the federal government. The petitioner brought suit against the respondent state, arguing that the respondent state’s law violated the supremacy clause by discriminating against the federal government. The District Court concluded that the law was constitutional because it fell within the scope of a federal waiver of immunity contained in 40 USC §3172.

Issue

Whether the respondent state workers’ compensation law fell within the scope of the congressional waiver on the federal government’s constitutional immunity contained in 40 USC §3172.

Relevant provisions of the law

40 U.S. Code § 3172

(a)Authorization of Extension

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.

(b)Limitation on Relinquishing Jurisdiction

The Government under this section does not relinquish its jurisdiction for any other purpose.

(c)Non-application

This section does not modify or amend subchapter I of chapter 81 of title 5.

Held

  1. A state law discriminated against the federal government or its contractors if it singled them out for less favorable treatment or if it regulated them unfavorably on some basis related to their governmental status. The respondent state’s law violated those principles by singling out the federal government for unfavorable treatment. Onits face, the law applied only to a person, including a contractor or subcontractor, who was engaged in the performance of work, either directly or indirectly, for the petitioner.
  2. The law thereby explicitly treated federal workers differently than state or private workers. And, in doing so, the law imposed upon the federal government costs that state or private entities did not bear. The law consequently violated the supremacy clause unless Congress had consented to such regulation through waiver.
  3. The court would find that Congress had authorized regulation that would otherwise violate the federal government’s intergovernmental immunity only when and to the extent there was a clear congressional mandate. In other words, Congress had to provide clear and unambiguous authorization for that kind of state regulation.
  4. The respondent state argued that Congress had provided such authorization by waiving federal immunity from state workers’ compensation laws on federal lands and projects. The statutory waiver the respondent state relied upon, 40 USC §3172(a), said that the state authority charged with enforcing and requiring compliance with the state workers’ compensation laws could apply those laws to all land and premises in the State which the federal government owned, as well as to all projects, buildings, constructions, improvements, and property in the state and belonging to the government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the state.
  5. §3172’s waiver did not clearly and unambiguously authorize a state to enact a discriminatory law that facially singled out the federal government for unfavorable treatment. One could reasonably read the statute as containing a narrower waiver of immunity, namely, as only authorizing a State to extend its generally applicable state workers’ compensation laws to federal lands and projects within the state.
  6. The statute required state enforcement authorities to apply state laws to federal premises in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the state. The in the same way and to the same extent language suggested that the statute contemplated laws that could apply to state, as well as to federal, premises and employees.
  7. The statute also gave to the state authority charged with enforcing the state workers’ compensation laws the power to apply the laws to federal lands and projects. That language seemed to contemplate application of state provisions that applied at least in part to nonfederal (i.e., state and private) workers. After all, those were the laws that state enforcement authorities ordinarily enforced.
  8. Further, the title of the statutory waiver provision referred to the extension of state workers’ compensation laws to buildings, works, and property of the federal government. The word extension suggested application to federal premises of a state’s generally applicable workers’ compensation laws— laws that had some independent significance beyond the federal context.
  9. Finally, preventing discrimination against the federal government lay at the heart of the Constitution’s intergovernmental immunity doctrine. The respondent state’s voters would not mind; they would not pay for the costs of the scheme. And some of the respondent state’s residents—those working for the federal government—would benefit from it. The nondiscrimination principle provided a political check on the state’s ability to impose such laws by ensuring that the state’s own citizens shouldered at least some of the costs. Discriminatory provisions like the one before the court contained no such ballot-box safeguard. The statutory language of §3172’s waiver permitted a reading that did not allow discrimination against the federal government. The waiver thus did not clearly and unambiguously authorize the respondent state’s discriminatory law.
  10. The court found the respondent state’s other arguments unconvincing that one phrase in the waiver statute, namely, the phrase that allowed a state to apply its workers’ compensation laws to federal premises as if the premises were under the exclusive jurisdiction of the state. That phrase, however, appeared immediately after the in the same way and to the same extent language. Reading the two clauses together, the statute could plausibly be interpreted to allow only the extension of generally applicable workers’ compensation laws to federal premises. It thus did not clearly and unambiguously permit the kind of discrimination that the respondent state’s federal workers only law contained.
  11. The fact that Congress more explicitly preserved the immunity in other contexts did not mean that Congress clearly waived it there. Nor did the lack of an explicit antidiscrimination reference convert an ambiguous statutory waiver into one that unambiguously authorized discrimination. Indeed, the respondent state pointed to no waiver statute that courts had interpreted as permitting the kind of explicit discrimination that the respondent state’s law contained. Given that broader context, Congress’ explicit antidiscrimination language in the tax and environmental waivers as much suggested Congress’ general hesitation to allow discrimination as it suggested that Congress authorized it there.
  12. The respondent state’s law facially discriminated against the federal government and its contractors. Because §3172 did not clearly and unambiguously waive the government’s immunity from discriminatory state laws, the respondent state’s law was unconstitutional under the supremacy clause.

The Ninth Circuit’s conclusion to the contrary reversed, and the case remanded for further proceedings.

Relevance to the Kenyan jurisprudence

The Constitution of Kenya, 2010, in article 191 elaborates that:

1. This Article applies to conflicts between national and county legislation in respect of matters falling within the concurrent jurisdiction of both levels of government.

2. National legislation prevails over county legislation if

a. the national legislation applies uniformly throughout Kenya and any of the conditions specified in clause (3) is satisfied; or
b. the national legislation is aimed at preventing unreasonable action by a county that:

i. is prejudicial to the economic, health or security interests of Kenya or another county; or

ii. impedes the implementation of national economic policy.

4. County legislation prevails over national legislation if neither of the circumstances contemplated in clause (2) apply.

5. In considering an apparent conflict between legislation of different levels of government, a court shall prefer a reasonable interpretation of the legislation that avoids a conflict to an alternative interpretation that results in conflict.

6. A decision by a court that a provision of legislation of one level of government prevails over a provision of legislation of another level of government does not invalidate the other provision, but the other provision is inoperative to the extent of the inconsistency.

The Intergovernmental Relations Act of 2012 in section 5 highlights that the objects of intergovernmental structures established under this Act include:

(c) respect for the functional and institutional integrity of the two levels of government;

(d) promotion of national values and principles of governance provided under Article 10 of the Constitution;

(e) respect for the constitutional status of the levels of government and the institutions of government established at either level of government;

(f) promotion of equality and equity in service delivery;

(g) objectivity and impartiality in decision making;

The Employment Act, 2007 in section 5 points out that:

(1) It shall be the duty of the Minister, labour officers and the Industrial Court–

(a) to promote equality of opportunity in employment in order to eliminate discrimination in employment; and

(b) to promote and guarantee equality of opportunity for a person who, is a migrant worker or a member of the family of the migrant worker, lawfully within Kenya.

(2) An employer shall promote equal opportunity in employment and strive to eliminate discrimination in any employment policy or practice.

In the case of Reuben Wamukota Sikulu v the Director Human Resources Management Ministry of Devolution and Planning & 2 others [2020] eKLR the court held that what an employee is required to establish in a claim of discrimination is a prima facie case through direct evidence or statistical proof that he was treated differently on any ground set out under Article 27(4) of the constitution.

The court in Magare Gikenyi J Benjamin v County Government of Nakuru & 4 others [2020] eKLRheld that:

In this case the foundation of the claimant’s case is that he was set apart and treated differently from his colleagues. However, the claimant was released to undertake studies vide letter dated 22nd October, 2013. The circumstances leading to his two other colleagues being absent from work, the stoppage of their salaries and later reinstatement cannot apply to justify the claimant being absent from work without permission and on this basis claim that he was discriminated against by the respondents. Far from it, such other colleagues though similarly situate and undertaking studies with the claimant at Moi University, the reason and periods of their release and the terms and conditions of the stoppage and reinstatement of their salaries must be taken into account.

In Senate & 48 others v Council of Governors & 54 others [2019] eKLR, the Court of Appeal looked into the altering of the structure of devolved government to make persons who were members of the national government or parliament to be members of a decision-making body in a county government which was in violation of the law and separation of powers principle. The court held that the trial court did not err in finding that sections 91A and 91B of the County Government (Amendment) Act, 2014 contravened the Constitution and were antithetical to the oversight role of the senate as provided in article 96 (2) and (3) of the Constitution as read with the legislative power of the county assembly in article 185 (1) of the Constitution.

Moreover, the court in County Government of Uasin Gishu v Abbey Resort Limited; Kenya Commercial Bank & 2 others, illuminated on the procedure for execution of garnishee proceedings against County Governments. The court held that that garnisheeing a county government’s bank accounts to settle the civil debt was illegal and unlawful for lack of conformity with the Governments Proceedings Act and order 29 of the Civil Procedure Rules.

The case is therefore pivotal to the Kenyan jurisprudence for it elaborates on devolution, precisely on the national government’s immunity from discriminatory county government laws.

 





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