Can employees who work on military bases sue their contractor employers? The answer is probably yes, but problems arise if Congress still has “exclusive legislation” over the base, a type of Federal Enclave.

Article I, Section 8, Clause 17 of the United States Constitution creates Federal Enclaves and gives Congress “exclusive Legislation in all Cases whatsoever” over Washington D.C. and over “all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, doc-Yards and other needful Buildings.” Accordingly, when a State sells land to the United States so the federal government can build a military base, Congress has “exclusive legislation” over that property, assuming that the selling State has consented to grant such jurisdiction. (James v. Dravo Contracting, (1937) 302 U.S. 134; Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 531.)

Unfortunately, Congress has passed no civil laws that directly apply to Enclaves. By default, some federal civil law applies, for instance the Fair Labor Standards Act. In addition, Congress has authorized certain types of state law to apply on Enclaves: personal injury and wrongful death; state taxes on income, sales, use and fuel; state worker’s compensation laws; and state unemployment compensation laws. However, Congress has not addressed many areas of civil law, such as: probate, motor vehicle registration, family law, etc.

If state family law does not apply to Enclaves, how can Enclave citizens get a divorce? The Supreme Court recognized that problem and has addressed it over the years.

First, it found that the law of the state, at the time the state gave the land to the federal government, was incorporated into the federal enclave except for conflicting state law. (James Stewart & Co. v. Sadrakula (1940) 309 U.S. 94, 99-100.) Later the Supreme Court said that state laws enacted after the state ceded the land applied to Federal Enclaves if “the basic state law authorizing such control has been in effect since the time of acquisition.” (Paul v. United States (1963) 371 U.S. 245, 269.)

Second, still later, the Supreme Court appeared to proclaim that all state law applies to Enclaves unless the state law conflicts with federal law. “[F]riction, not fiction” determines whether or not state law applies on federal enclaves. (Howard v. Commissioners (1953) 344 U.S. 624, 626.) Later, it reaffirmed Howard holding that Howard specifically rejected the “fiction of a state within a state” and that state law can apply on federal enclaves even if not specifically authorized by Congress. (Evans v. Cornman (1970) 398 U.S. 419, 421-22, 24.)

Still, confusion abounds concerning what state laws should apply on Enclaves. Later court holdings appear to conflict with the “Friction, not fiction” concept. Notably, in California, one appellate court said: “in the area of the rights of federal enclave residents to state benefits, there has been a trend . . . to hold that the exclusive jurisdiction of Congress does not deprive enclave residents of benefits which would otherwise be theirs.” But later it says: “[T]he ability to bring a civil action [for wrongful termination] against one’s employer under state law is not a “benefit” in the same sense as voting, public school attendance, or eligibility for welfare payments.” (Taylor v. Lockheed Martin Corp. (2000) 78 Cal.App.4th 472, 481-82.) The Taylor court appeared to hold that three types of law apply on enclaves: (1) state law that existed at the time the Enclave was created, (2) congressionally authorized state law, and, (3) state law that qualified as a “benefit” in the sense referred to above.

The analysis in Taylor leaves gaps in the law and creates uncertainty. Further, arguably, the Supreme Court of the United States has authorized all state law that does not directly conflict with federal law to apply on Enclaves. Because of the uncertainties and complications of Enclave law, employers should probably assume that state law applies to its employees who work for it on a base.

S. Ward Heinrichs, Esq.
Employment Law Office of Ward Heinrichs
4565 Ruffner Street, Suite 207
San Diego, CA 92111
858-292-0792
(858) 408-7543 (fax)