People For the American Way

Trump Judges Try to Revive Attack by Trump Administration on State Law that Helps Former Workers at Closed Nuclear Facility: Confirmed Judges, Confirmed Fears

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Trump Judges Try to Revive Attack by Trump Administration on State Law that Helps Former Workers at Closed Nuclear Facility: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.


Trump Ninth Circuit judges Daniel Collins, Mark Bennett, and Daniel Bress argued in dissent that the full court should vacate and reconsider a decision, which was attacked by the Trump Justice Department, and which upheld a Washington state workers’ compensation law relieving problems experienced by former workers at a closed nuclear facility suffering from cancer and other diseases. The court majority rejected these claims and denied rehearing in its April 2021 order in United States v State of Washington.

 In 2018, Washington state passed HB 1723, a law that “cleared red tape in the workers’ compensation system” for former workers “suffering from cancer and other ailments” after working at the now-closed Hanford nuclear site operated by the federal government in the state. The law basically establishes a rebuttable presumption that any such worker suffering from leukemia, bone cancer, or a number of other specified diseases is entitled to workers’ compensation as a result of exposure to dangerous radiation at the former plant. The Trump Justice Department sued and claimed that the law was invalid.

Both the district court and a three-judge panel of the Ninth Circuit rejected the Trump DOJ claims and upheld the law. The Trump DOJ tried to get the full court to vacate and reconsider the decision, but the court refused. Trump judge Collins, however, joined by Trump judges Bennett and Bress and one other conservative judges, wrote a harsh dissent, claiming that the state law was “extraordinary and egregious.”

Judge Milan Smith, who was nominated by President George W Bush, wrote a concurring opinion that criticized Collins’ “apocalyptic” dissent, explaining that it “disregards the plain text” of the relevant statute and “misreads the relevant precedents.” Both Collins and Smith recognized that the validity of the law depends on whether it is authorized by 40 U.S. Code sec 3172(a), which says that states “may apply” their workers’ compensation laws to land and facilities owned by the federal government “in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the state.”  Collins asserted that the law was invalid because it set up workers’ compensation rules that apply “in a different way” and to “a different extent” than with respect to current premises “under the exclusive jurisdiction of the state.”

As Judge Smith pointed out, however, Collins’ interpretation “ignores the latter part” of the statute’s text. The text makes clear, Smith explained, that the federal law does not require that the state “enact the exact same” workers’ compensation law for current state and federal owned property, just that “it could enact the same” state law if the Hanford facility were under the control of the state. Collins’ reading of the federal law, Smith continued, “violates the basic canon of statutory construction” that courts must stick to “what Congress has written” and not import Collins’ purported “non-discrimination” principle into the law.

Smith went on to explain that Collins’ reliance on two previous Supreme Court and Ninth Circuit decisions on workers’ compensation was also misplaced. The rulings “did not hold” that Collins’ “alleged non-discrimination principle” forbids the state from having different workers’ compensation rules for the federally-owned Hanford facility, as long as the rules established by HB 1723 “could be applied” to a similar state-owned facility. Neither ruling, Smith concluded, supports Collins’ claim that the federal law “requires that a state pass identical workers’ compensation schemes for federal and non-federal facilities.”

Judge Smith noted the unique nature of the Hanford facility, which “produced nearly two-thirds of the nation’s weapons-grade plutonium” during World War II and the Cold War and involved “unprecedented” cleanup activity. It was no surprise that Washington adopted different workers’ compensation rules concerning that facility, he noted, and Collins’ suggestion that upholding those rules would somehow “prevent” the federal government “from operating within the boundaries” of the state was “’too obviously’ false to be accepted.”

The full Ninth Circuit fortunately rejected the radical arguments of Trump judges Collins, Bennett, and Bress, which threated to harm workers in Washington state. With two seats on the Ninth Circuit already awaiting nominees and more likely to follow, it is crucial to our fight for our courts that President Biden and the Senate promptly fill those seats with fair-minded judges with a demonstrated commitment to equality, justice, and fundamental rights for all.



Confirmed Judges Confirmed Fears, Daniel Bress, Daniel Collins, Mark Bennett, Ninth Circuit Court of Appeals, workers' rights