author: Chief Justice Rehnquist Justice Stevens,,

text:
    SMITH v. UNITED STATES
    No. 91-1538.
    Argued December 7, 1992
    Decided March 8, 1993

      Rehnquist, C. J., delivered the opinion of the Court, in which White, Blackmun, O’ConnoR, Scalia, Kennedy, SouteR, and Thomas, JJ., joined. Stevens, J., filed a dissenting opinion, post, p. 205.

      David J. Bederman argued the cause for petitioner. With him on the briefs were Allen T. Murphy, Jr., and David Gernant.

      Christopher J. Wright argued the cause for the United States. On the brief were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Mahoney, and Mark B. Stern.

   Chief Justice Rehnquist

delivered the opinion of the Court.

This case presents the question whether the Federal Tort Claims Act (FTCA), 28 U. S. C. §§ 1346(b), 1402(b), 2401(b), 2671-2680 (1988 ed. and Supp. II), applies to tortious acts or omissions occurring in Antarctica, a sovereignless region without civil tort law of its own. We hold that it does not.

Petitioner Sandra Jean Smith is the widow of John Emmett Smith and the duly appointed representative of his estate. At the time of his death, Smith worked as a carpenter at McMurdo Station on Ross Island, Antarctica, for a construction company under contract to the National Science Foundation, an agency of the United States. Smith and two companions one day took a recreational hike to Castle Rock, located several miles outside of McMurdo Station. On their return, they departed from the marked route to walk across a snow field in the direction of Scott Base, a New Zealand outpost not far from McMurdo Station. After stopping for a snack, one of the three men took a step and suddenly dropped from sight. Smith followed, and he, too, disappeared. Both men had fallen into a crevasse. Despite search and rescue efforts, Smith died from exposure and internal injuries suffered as a result of the fall.

Petitioner filed this wrongful-death action against the United States under the FTCA in the District Court for the District of Oregon, the district where she resides. Petitioner alleged that the United States was negligent in failing to provide adequate warning of the dangers posed by crevasses in areas beyond the marked paths. It is undisputed that petitioner’s claim is based exclusively on acts or omissions occurring in Antarctica. Upon the motion of the United States, the District Court dismissed petitioner’s complaint for lack of subject-matter jurisdiction, 702 F. Supp. 1480 (1989), holding that her claim was barred by 28 U. S. C. §2680(k), the foreign-country exception. Section 2680(k) precludes the exercise of jurisdiction over “[a]ny claim arising in a foreign country.”

The Court of Appeals affirmed, 953 F. 2d 1116 (CA9 1991). It noted that the term “foreign country” admits of multiple interpretations, and thus looked to the language and structure of the FTCA as a whole to determine whether Antarctica is a “foreign country” within the meaning of the statute. Adopting the analysis and conclusion of then-judge Scalia, see Beattie v. United States, 244 U. S. App. D. C. 70, 85-109, 756 F. 2d 91, 106-130 (1984) (Scalia, J., dissenting), the Court of Appeals ruled that the FTCA does not apply to claims arising in Antarctica. To hold otherwise, the Court of Appeals stated, would render two other provisions of the FTCA, 28 U.S.C. §§ 1402(b), 1346(b), nonsensical. The Court of Appeáls held, in the alternative, that petitioner’s suit would be barred even if Antarctica were not a “foreign country” for purposes of the FTCA. Because the FTCA was a limited relinquishment of the common-law immunity of the United States, the Court of Appeals concluded that the absence of any clear congressional intent to subject the United States to liability for claims arising in Antarctica precluded petitioner’s suit. We granted certiorari to resolve a conflict between two Courts of Appeals, 504 U. S. 984 (1992), and now affirm.

Petitioner argues that the scope of the foreign-country exception turns on whether the United States has recognized the legitimacy of another nation’s sovereign claim over the foreign land. Otherwise, she contends, the land is not a “country” for purposes of the FTCA. Petitioner points out that the United States does not recognize the validity of other nations’ claims to portions of Antarctica. She asserts, moreover, that this construction of the term “foreign country” is most consistent with the purpose underlying the foreign-country exception. According to petitioner, Congress enacted the foreign-country exception in order to insulate the United States from tort liability imposed pursuant to foreign law. Because Antarctica has no law of its own, petitioner claims that conventional choice-of-law rules control and require the application of Oregon law, the law of her domicil. Thus, petitioner concludes, the rationale for the foreign-country exception would not be compromised by the exercise of jurisdiction here, since the United States would not be subject to liability under the law of a foreign nation.

Petitioner’s argument for governmental liability here faces significant obstacles in addition to the foreign-country exception, but we turn first to the language of that proviso. It states that the FTCA’s waiver of sovereign immunity does not apply to “[a]ny claim arising in a foreign country.” 28 U. S. C. § 2680(k). Though the FTCA offers no definition of “country,” the commonsense meaning of the term undermines petitioner’s attempt to equate it with “sovereign state.” The first dictionary definition of “country” is simply “[a] region or tract of land.” Webster’s New International Dictionary 609 (2d ed. 1945). To be sure, this is not the only possible interpretation of the term, and it is therefore appropriate to examine other parts of the statute before making a final determination. But the ordinary meaning of the language itself, we think, includes Antarctica, even though it has no recognized government.

Our construction of the term “foreign country” draws support from the language of § 1346(b), “[t]he principal provision of the Federal Tort Claims Act.” Richards v. United States, 369 U. S. 1, 6 (1962). That section waives the sovereign immunity of the United States for certain torts committed by federal employees “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U. S. C. § 1346(b) (emphasis added). We have construed § 1346(b) in determining what law should apply in actions brought under the FTCA. See Richards, supra. But by its terms the section is more than a choice-of-law provision: It delineates the scope of the United States’ waiver of sovereign immunity. If Antarctica were not a “foreign country,” and for that reason included within the FTCA’s coverage, § 1346(b) would instruct courts to look to the law of a place that has no law in order to determine the liability of the United States — surely a bizarre result. Of course, if it were quite clear from the balance of the statute that governmental liability was intended for torts committed in Antarctica, then the failure of § 1346(b) to specify any governing law might be treated as a statutory gap that the courts could fill by decisional law. But coupled with what seems to us the most natural interpretation of the foreign-country exception, this portion of § 1346(b) reinforces the conclusion that Antarctica is excluded from the coverage of the FTCA.

Section 1346(b) is not, however, the only FTCA provision that contradicts petitioner’s interpretation of the foreign-country exception. The statute’s venue provision, § 1402(b), provides that claims under the FTCA may be brought “only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” Because no federal judicial district encompasses Antarctica, petitioner’s interpretation of the FTCA would lead to yet another anomalous result: The FTCA would establish jurisdiction for all tort claims against the United States arising in Antarctica, but no venue would exist unless the claimant happened to reside in the United States. As we observed in Brunette Machine Works, Ltd. v. Kockum Industries, Inc., 406 U. S. 706, 710, n. 8 (1972), “Congress does not in general intend to create venue gaps, which take away with one hand what Congress has given by way of jurisdictional grant with the other.” Thus, in construing the FTCA, it is “reasonable to prefer the construction that avoids leaving such a gap,” ibid., especially when that construction comports with the usual meaning of a disputed term.

Our decisions interpreting the FTCA contain varying statements as to how it should be construed. See, e.g., United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951); Dalehite v. United States, 346 U. S. 15, 31 (1953); United States v. Orleans, 425 U. S. 807, 813 (1976); Kosak v. United States, 465 U. S. 848, 853, n. 9 (1984). See also United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992). A recent statement of this sort, and the one to which we now adhere, is found in United States v. Kubrick, 444 U. S. 111, 117-118 (1979) (citations omitted): “We should also have in mind that the Act waives the immunity of the United States and that ... we should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the authority to narrow the waiver that Congress intended.” Reading the foreign-country exception to the FTCA to exclude torts committed in Antarctica accords with this canon of construction.

Lastly, the presumption against extraterritorial application of United States statutes requires that any lingering doubt regarding the reach of the FTCA be resolved against its encompassing torts committed in Antarctica. “It is a longstanding principle of American law ‘that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.’” EEOC v. Arabian American Oil Co., 499 U. S. 244, 248 (1991) (quoting Foley Bros., Inc. v. Filardo, 336 U. S. 281, 285 (1949)). In applying this principle, “[w]e assume that Congress legislates against the backdrop of the presumption against extraterritoriality.” Arabian American Oil Co., supra, at 248; accord, e. g., Argentine Republic v. Amerada Hess Shipping Corp., 488 U. S. 428, 440 (1989) (“When it desires to do so, Congress knows how to place the high seas within the jurisdictional reach of a statute”). The applicability of the presumption is not defeated here just because the FTCA specifically addresses the issue of extraterritorial application in the foreign-country exception. To the contrary, as we stated in United States v. Spelar, 338 U. S. 217, 222 (1949), “[t]hat presumption, far from being overcome here, is doubly fortified by the language of this statute and the legislative purpose underlying it.” Petitioner does not assert, nor could she, that there is clear evidence of congressional intent to apply the FTCA to claims arising in Antarctica.

For all of these reasons, we hold that the FTCA’s waiver of sovereign immunity does not apply to tort claims arising in Antarctica. Some of these reasons are based on the language and structure of the statute itself; others are based on presumptions as to extraterritorial application of Acts of Congress and as to waivers of sovereign immunity. We think these norms of statutory construction have quite likely led us to the same conclusion that the 79th Congress would have reached had it expressly considered the question we now decide: It would not have included a desolate and extraordinarily dangerous land such as Antarctica within the scope of the FTCA. The judgment of the Court of Appeals is therefore

Affirmed.

Justice Stevens,,

dissenting.

In my opinion the Court’s decision to grant certiorari in this case was a wise exercise of its discretion. The question whether the United States should be held responsible for the tortious conduct of its agents in the vast “sovereignless region” of Antarctica, ante, at 198, is profoundly important, not only because its answer identifies the character of our concern about ordinary justice, but also because Antarctica is just one of three vast sovereignless places where the negligence of federal agents may cause death or physical injury. The negligence that is alleged in this case will surely have its parallels in outer space as our astronauts continue their explorations of ungoverned regions far beyond the jurisdictional boundaries that were familiar to the Congress that enacted the Federal Tort Claims Act (FTCA) in 1946. Moreover, our jurisprudence relating to negligence of federal agents on the sovereignless high seas points unerringly to the correct disposition of this case. Unfortunately, the Court has ignored that jurisprudence in its parsimonious construction of the FTCA’s “sweeping” waiver of sovereign immunity.

In theory the territorial limits on the consent to sue the United States for the torts of its agents might be defined in four ways: (1) there is no such limit; (2) territory subject to the jurisdiction of a foreign country is the only exclusion; (3) it also excludes sovereignless land areas such as Antarctica, but it includes the high seas and outer space; or (4) it has an “exclusive domestic focus” that applies “only within the territorial jurisdiction of the United States.” The “foreign country” exclusion in 28 U. S. C. §2680(k) unquestionably eliminates the first possibility. In my opinion, the second is compelled by the text of the Act. The third possibility is not expressly rejected by the Court, but the reasoning in its terse opinion seems more consistent with the Government’s unambiguous adoption of the fourth, and narrowest, interpretation. I shall therefore first explain why the text of the FTCA unquestionably requires rejection of the Government’s submission.

I

The FTCA includes both a broad grant of jurisdiction to the federal courts in § 1346(b) and a broad waiver of sovereign immunity in §2674. Neither of these sections identifies any territorial limit on the coverage of the Act. That Congress intended and understood the broad language of those two provisions to extend beyond the territory of the United States is demonstrated by its enactment of two express exceptions from that coverage that would have been unnecessary if the initial grant of jurisdiction and waiver of immunity had been as narrow as the Government contends. One of those, of course, is the “foreign country” exclusion in §2680(k). See n. 6, supra. The other is the exclusion in § 2680(d) for claims asserted under the Suits in Admiralty Act or the Public Vessels Act. Without that exclusion, a party with a claim against the United States cognizable under either of those venerable statutes would have had the right to elect the pre-existing remedy or the newly enacted FTCA remedy. Quite obviously that exclusion would have been unnecessary if the FTCA waiver did not extend to the sovereignless expanses of the high seas.

Indeed, it was the enactment of the FTCA in 1946 that first subjected the United States to liability for maritime negligence claims that could not be maintained under either the Suits in Admiralty Act or the Public Vessels Act, in particular, claims arising from death or injury on the high seas. As enacted in 1920, the Death on the High Seas Act (DOHSA) provided a remedy against private parties but contained no waiver of sovereign immunity. That changed with the enactment of the FTCA, which waived the sovereign immunity of the United States for claims arising on the high seas under the DOHSA and the general maritime law. See, e. g., United States v. Gavagan, 280 F. 2d 319, 321 (CA5 1960) (holding United States liable, under the FTCA and the DOHSA, for death resulting from negligent rescue efforts on the high seas), cert. denied, 364 U. S. 933 (1961); Blumenthal v. United States, 189 F. Supp. 439, 446-447 (ED Pa. 1960) (“In the same manner as a private person is liable under the Death on the High Seas Act, so, too, is the Government under the Federal Tort Claims Act”), aff’d, 306 F. 2d 16 (CA3 1962); Kunkel v. United States, 140 F. Supp. 591, 594 (SD Cal. 1956) (same); Moran v. United States, 102 F. Supp. 275 (Conn. 1951) (holding that the FTCA waived the sovereign immunity of the United States for claims arising from both personal injury and death on the high seas). See also McCormick v. United States, 680 F. 2d 345, 349 (CA5 1982) (citing Moran with approval); Roberts v. United States, 498 F. 2d 520, 525-526 (CA9 1974) (noting that prior to 1960 amendments to Suits in Admiralty Act, FTCA waived sovereign immunity for claims under the general maritime law and the DOHSA).

In 1960, Congress amended the Suits in Admiralty Act so as to bring all maritime torts asserted against the United States, including those arising under the DOHSA, within the purview of the Suits in Admiralty Act and thus outside the waiver of sovereign immunity in the FTCA. See United States v. United Continental Tuna Corp., 425 U. S. 164, 176, n. 14 (1976). There can be no disputing the fact, however, that at the time it was enacted, the FTCA waiver extended to the sovereignless reaches of the high seas. Since the geographic scope of that waiver has never been amended, the Government’s submission that it is confined to territory under the jurisdiction of the United States is simply untenable.

That the 79th Congress intended the waiver of sovereign immunity in the FTCA to extend to the high seas does not, of course, answer the question whether that waiver extends to the sovereignless region of Antarctica. It does, however, undermine one premise of the Court’s analysis: that the presumption against the extraterritorial application of federal statutes supports its narrow construction of the geographic reach of the FTCA. As the Court itself acknowledges, see ante, at 204, that presumption operates “unless a contrary intent appears.” Here, the contrary intent is unmistakable. The same Congress that enacted the “foreign country” exception to the broad waiver of sovereign immunity in § 2674 subjected the United States to claims for wrongful death and injury arising well beyond the territorial jurisdiction of the United States. The presumption against extraterritorial application of federal statutes simply has no bearing on this case.

II

The Government, therefore, may not prevail unless Antarctica is a “foreign country” within the meaning of the exception in subsection (k). Properly, in my view, the Court inquires as to how we are to construe this exception to the FTCA’s waiver of sovereign immunity. Ante, at 203. Instead of answering that question, however, the Court cites a nebulous statement in United States v. Kubrick, 444 U. S. 111, 117-118 (1979), and simply asserts that construing the foreign-country exception so as to deny recovery to this petitioner somehow accords with congressional intent. Ante, at 203.

I had thought that canons of statutory construction were tools to be used to divine congressional intent, not empty phrases used to ratify whatever result is desired in a particular case. In any event, I would answer the question that the Court poses, but then ignores. And as I read our cases, the answer is clear: Exceptions to the “‘sweeping’” waiver of sovereign immunity in the FTCA should be, and have been, “narrowly construed.” United States v. Nordic Village, Inc., 503 U. S. 30, 34 (1992) (quoting United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951)). Accordingly, given a choice between two acceptable interpretations of the term “country” — it may designate either a sovereign nation or an expanse of land — it is our duty to adopt the former.

Even without that rule of construction, we should favor the interpretation of the term that the Court has previously endorsed. Referring specifically to the term as used in the FTCA, we stated: “We know of no more accurate phrase in common English usage than ‘foreign country’ to denote territory subject to the sovereignty of another nation.” United States v. Spelar, 338 U. S. 217, 219 (1949). That interpretation is consistent with a statutory scheme that imposes tort liability on the Government “in the same manner and to the same extent as a private individual under like circumstances,” see n. 6, supra. As we explained in Spelar: “[Tjhough Congress was ready to lay aside a great portion of the sovereign’s ancient and unquestioned immunity from suit, it was unwilling to subject the United States to liabilities depending upon the laws of a foreign power.” 338 U. S., at 221. Thus, the narrow interpretation of the term “foreign country” is precisely tailored to make the scope of the subsection (k) exception coextensive with its justification.

I — I HH I — I

The Court seeks to buttress its interpretation of the foreign country” exception by returning to the language of the jurisdictional grant in § 1346(b). As I have noted, federal courts have jurisdiction of civil claims against the United States “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Emphasizing the last dozen words, the Court essentially argues that Antarctica is “a place that has no law” and therefore it would be “bizarre” to predicate federal liability on its governing law. Ante, at 202.

Although the words the Court has italicized indicate that Congress may not have actually thought about sovereignless regions, they surely do not support the Court’s conclusion. Those words, in conjunction with §2674, require an answer to the question whether a private defendant, in like circumstances, would be liable to the complainant. The Court fails even to ask that question, possibly because it is so obvious that petitioner could maintain a cause of action against a private party whose negligence caused her husband’s death in Antarctica. It is simply wrong to suggest, as the Court does, that Antarctica is “a place that has no law,” ante, at 201.

The relevant substantive law in this case is the law of the State of Oregon, where petitioner resides. As was well settled at English common law before our Republic was founded, a nation’s personal sovereignty over its own citizens may support the exercise of civil jurisdiction in transitory actions arising in places not subject to any sovereign. Mostyn v. Fabrigas, 98 Eng. Rep. 1021, 1032 (K. B. 1774). See also Dutton v. Howell, 1 Eng. Rep. 17, 21 (H. L. 1693). This doctrine of personal sovereignty is well recognized in our cases. As Justice Holmes explained in American Banana Co. v. United Fruit Co., 213 U. S. 347 (1909):

“No doubt in regions subject to no sovereign, like the high seas, or to no law that civilized countries would recognize as adequate, such [civilized nations] may treat some relations between their citizens as governed by their own law, and keep to some extent the old notion of personal sovereignty alive.” Id., at 355-356.

Justice Holmes was referring to the assertion of extraterritorial jurisdiction by the United States rather than an individual State, but it is clear that the States also have ample power to exercise legislative jurisdiction over the conduct of their own citizens abroad or on the high seas. As we explained in Skiriotes v. Florida, 313 U. S. 69 (1941):

“If the United States may control the conduct of its citizens upon the high seas, we see no reason why the State of Florida may not likewise govern the conduct of its citizens upon the high seas with respect to matters in which the State has a legitimate interest and where there is no conflict with acts of Congress.” Id., at 77.

Surely the State of Oregon, the forum State, has a substantial interest in applying its civil tort law to a case involving the allegedly wrongful death of the spouse of one of its residents. Certainly no other State has an interest in applying its law to these facts. Moreover, application of Oregon’s substantive law would in no way conflict with an Act of Congress because Congress has expressly subjected the United States to the laws of the various States for torts committed by the United States and its agents. It is thus perfectly clear that were the defendant in this case a private party, there would be law to apply to determine that party’s liability to petitioner. Given the plain language of §2674, I see no basis for the Court’s refusal to follow the statutory command and hold the United States “liable ... in the same manner and to the same extent as a private individual under like circumstances.”

IV

Petitioner’s action was filed “in the judicial district where the plaintiff resides,” as § 1402(b) authorizes; there is, therefore, no objection to venue in this case. Because that provision would not provide a forum for a comparable action brought by a nonresident alien, the statute contains an omission that is no stranger to our law. In our opinion in Brunette Machine Works, Ltd. v. Kockurn Industries, Inc., 406 U. S. 706, 710, n. 8 (1972), we identified examples of “cases in which the federal courts have jurisdiction but there is no district in which venue is proper” and stated that “in construing venue statutes it is reasonable to prefer the construction that avoids leaving such a gap.” (Emphasis added.) Neither in that case nor in any other did we suggest that a venue gap should be avoided by adopting a narrow construction of either a jurisdictional grant or the scope of a federal cause of action. Yet that is the Court’s perverse solution to the narrow venue gap in the FTCA.

Because a hypothetical handful of nonresident aliens may have no forum in which to seek relief for torts committed by federal agents in outer space or in Antarctica, the Court decides that the scope of the remedy itself should be narrowly construed. This anomalous conclusion surely derives no support whatsoever from the basic decision to include aliens as well as citizens within the protection of the statute, particularly since the overwhelming majority of aliens who may have occasion to invoke the FTCA are surely residents. As Judge Fletcher accurately observed in her dissenting opinion in the Court of Appeals:

“Those who have no problem with venue should not be foreclosed from bringing suit simply because others cannot, particularly with respect to a statute such as the FTCA the primary purpose of which, as we have seen, was to expand the jurisdiction of the federal courts.” 953 F. 2d 1116, 1122 (CA9 1991).

At most, the imperfections in the statute indicate that in 1946 the 79th Congress did not specifically consider the likelihood of negligence actions arising in outer space or in a sovereignless territory such as Antarctica. In view of the fact that it did authorize actions against the United States arising out of negligence on the high seas, see supra, at 207-209,1 am bewildered by the Court’s speculation that if it had expressly considered the equally dangerous area at issue in this case, it would have distinguished between the two. Ante, at 204-205. The claim asserted in this case is entirely consistent with the central purpose of the entire Act.

Indeed, given that the choice is between imposing individual liability on federal agents for torts committed in the course of their employment, on the one hand, or holding their employer responsible, on the other hand, the amendment to the FTCA adopted by Congress in 1988 sheds more light on the issue presented in this case than the Court’s unfounded speculation about congressional intent. The congressional findings explaining the decision to immunize federal employees from personal liability for negligence in the performance of their duties indicate that Congress recognizes both the practical value and the justice of a generous interpretation of the FTCA. Moreover, those findings are thoroughly consistent with the interpretative approach of the unusually distinguished panel of Circuit Judges who, shortly after the FTCA was passed, wrote:

“When after many years of discussion and debate Congress has at length established a general policy of governmental generosity toward tort claimants, it would seem that that policy should not be set aside or hampered by a niggardly construction based on formal rules made obsolete by the very purpose of the Act itself. Particularly should this be true as to the broad terms of coverage employed in the basic grant of liability itself.” Spelar v. United States, 171 F. 2d 208, 209 (CA2 1948).

The wisdom that prompted the Court’s grant of certiorari is not reflected in its interpretation of the 1946 Act. Rather, it reflects a vision that would exclude electronic eavesdropping from the coverage of the Fourth Amendment and satellites from the coverage of the Commerce Clause. The international community includes sovereignless places but no places where there is no rule of law. Majestic legislation like the Federal Tort Claims Act should be read with the vision of the judge, enlightened by an interest in justice, not through the opaque green eyeshade of the cloistered bookkeeper. As President Lincoln observed in his first State of the Union Message:

“It is as much the duty of Government to render prompt justice against itself, in favor of citizens, as it is to administer the same between private individuals.”

I respectfully dissent.

       Without indigenous human population and containing roughly one-tenth of the world’s land mass, Antarctica is best described as “an entire continent of disputed territory.” F. Auburn, Antarctic Law and Politics 1 (1982). Seven nations — Argentina, Australia, Chile, France, New Zea-land, Norway, and the United Kingdom — presently assert formal claims to pie-shaped portions of the continent that total about 85 percent of its expanse. Boczek, The Soviet Union and the Antarctic Regime, 78 Am. J. Int’l L. 834, 840 (1984); Hayton, The Antarctic Settlement of 1959, 54 Am. J. Int’l L. 349 (1960). The United States does not recognize other nations’ claims and does not itself assert a sovereign interest in Antarctica, although it maintains a basis for such a claim. Lissitzyn, The American Position on Outer Space and Antarctica, 53 Am. J. Int’l L. 126, 128 (1969). In any event, these sovereign claims have all been suspended by the terms of the Antarctic Treaty, concluded in 1959. Antarctic Treaty, Dec. 1, 1959, [1961] 12 U. S. T. 794, T. I. A. S. No. 4780. Article IV of the treaty states that no claim may be enforced, expanded, or compromised while the treaty is in force, id., art. IV, 12 U. S. T., at 796, thus essentially freezing nations’ sovereign claims as of the date of the treaty’s execution.

       Cf. Beattie v. United States; 244 U. S. App. D. C. 70, 756 F. 2d 91 (1984) (holding that Antarctica is not a “foreign country” within the meaning of the FTCA).

       Nor can the law of the plaintiff’s domicil, Oregon here, be substituted in FTCA actions based on torts committed in Antarctica. “Congress has expressly stated that the Government’s liability is to be determined by the application of a particular law, the law of the place where the act or omission occurred ....” Richards v. United States, 369 U. S. 1, 9 (1962). Petitioner does not contend that her cause of action is based on acts or omissions occurring in Oregon.

       The history of the FTCA reveals that Congress declined to enact earlier versions of the statute that would have differentiated between foreign and United States residents. Those versions would have barred claims “arising in a foreign country in behalf of an alien.” S. 2690, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added); H. R. 7236, 76th Cong., 1st Sess., § 303(12) (1939) (emphasis added). At the suggestion of the Attorney General, the last five words of the proposed bills were dropped. See Hearings on H. R. 6373 and H. R. 6463 before the House Committee on the Judiciary, 77th Cong., 2d Sess., 29, 35, 66 (1942). As we observed in
        United States v. Spelar, 338 U. S. 217, 220 (1949), “[t]he superseded draft had made the waiver of the Government’s traditional immunity turn upon the fortuitous circumstance of the injured party’s citizenship.” The amended version, however, “identified the coverage of the Act with the scope of United States sovereignty.” Id., at 220-221. At least insofar as Antarctica is concerned, petitioner’s interpretation of the FTCA would effectively resurrect the scheme rejected by Congress; it would deny relief to foreign residents in circumstances where United States residents could recover.

       Petitioner instead argues that the presumption against extraterritoriality applies only if it serves to avoid “ ‘unintended clashes between our laws and those of other nations which could result in international discord.’ ” Brief for Petitioner 16 (quoting EEOC v. Arabian American Oil Co., 499 U. S., at 248). But the presumption is rooted in a number of considerations, not the least of which is the commonsense notion that Congress generally legislates with domestic concerns in mind.

       “The Federal Tort Claims Act waives the Government’s immunity from suit in sweeping language.” United States v. Yellow Cab Co., 340 U. S. 543, 547 (1951).

       See Brief for United States 16, 21-22.

       “The provisions of this chapter and section 1346(b) of this title shall not apply to—
      “(k) Any claim arising in a foreign country.” 28 U. S. C. §2680(k).

       In short, I agree with most of the analysis in Judge Fletcher’s dissenting opinion in this case and Judge Wilkey’s opinion for the Court of Appeals for the District of Columbia Circuit in Beattie v. United States, 244 U. S. App. D. C. 70, 756 F. 2d 91 (1984). Indeed, I am persuaded that the 79th Congress would have viewed torts committed by federal agents in “desolate and extraordinarily dangerous” lands as falling squarely within the central purpose of the FTCA. Ante, at 205.

       Title 28 U. S. C. § 1346(b) provides:
      “Subject to the provisions of chapter 171 of this title, the district courts, together with the United States District Court for the District of the Canal Zone and the District Court of the Virgin Islands, shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1946, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.”

       Section 2674 provides, in pertinent part:
      “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances, but shall not be liable for interest prior to judgment or for punitive damages.”

       Section 2680(d) excludes from the coverage of the FTCA “[a]ny claim for which a remedy is provided by sections 741-752, 781-790 of Title 46, relating to claims or suits in admiralty against the United States.”

       See United States v. United Continental Tuna Corp., 425 U. S. 164, 172 (1976) (“Maritime tort claims deemed beyond the reach of both Acts could be brought only on the law side of the district courts under the Federal Tort Claims Act”).

       Pub. L. 69-165, 41 Stat. 537, codified at 46 U. S. C. App. §761 et seq.

       See also Block v. Neal, 460 U. S. 289, 298 (1983), and United States v. Aetna Casualty & Surety Co., 338 U. S. 366, 383 (1949). As we stated in the latter:
      “In argument before a number of District Courts and Courts of Appeals, the Government relied upon the doctrine that statutes waiving sovereign immunity must be strictly construed. We think that the congressional attitude in passing the Tort Claims Act is more accurately reflected by Judge Cardozo’s statement...: ‘The exemption of the sovereign from suit involves hardship enough where consent has been withheld. We are not to add to its rigor by refinement of construction where consent has been announced.’” Ibid, (quoting Anderson v. Hayes Construction Co., 243 N. Y. 140, 147, 153 N. E. 28, 29-30 (1926)).

       The Court inaccurately refers to the jurisdictional grant as the section that “waives the sovereign immunity of the United States,” ante, at 201. It is actually § 2674 that waives immunity from liability by simply providing: “The United States shall be liable, respecting the provisions of this title relating to tort claims, in the same manner and to the same extent as a private individual under like circumstances_” See n. 6, supra. The Court does not quote § 2674.

       Apparently the Court is assuming that private contracts made in Antarctica are unenforceable and that there is no redress for torts committed by private parties in sovereignless regions. Fortunately our legal system is not that primitive. The statutory reference to “the law of the place where the act or omission occurred” was unquestionably intended to identify the substantive law that would apply to a comparable act or omission by a private party at that place. As long as private conduct is constrained by rules of law, and it certainly is in Antarctica, see infra, at 212-213, there is a governing “law of the place” within the meaning of the FTCA.

       Indeed, it borders on the absurd to suggest that Antarctica is governed by nothing more than the law of the jungle. The United States exercises both criminal jurisdiction, see 18 U. S. C. § 7(7), and taxing jurisdiction, see 26 U. S. C. § 863(d)(2)(A), over the approximately 2,500 Americans that live and work in and around Antarctica each year. See National Science Foundation, Facts About the U. S. Antarctic Program 1 (July 1990). The National Science Foundation operates three year-round stations in Antarctica, the largest of which is composed of 85 buildings and has a harbor, landing strips on sea ice and shelf ice, and a helicopter pad. Ibid. Transportation to and from New Zealand is frequent during the summer months. Id., at 2.

       Again, as Justice Holmes explained:
      “[T]he bare fact of the parties being outside the territory [of the United States] in a place belonging to no other sovereign would not limit the authority of the State, as accepted by civilized theory. No one doubts the power of England or France to govern their own ships upon the high seas.” The Hamilton, 207 U. S. 398, 403 (1907).

       In enacting the Federal Employees Liability Reform and Tort Compensation Act of 1988, the stated purpose of which was “to protect Federal employees from personal liability for common law torts committed within the scope of their employment, while providing persons injured by the common law torts of Federal employees with an appropriate remedy against the United States,” § 2(b), 102 Stat. 4564, 28 U. S. C. §2671 note, Congress made the following findings:
      “(1) For more than 40 years the Federal Tort Claims Act has been the legal mechanism for compensating persons injured by negligent or wrongful acts of Federal employees committed within the scope of their employment.
      “(2) The United States, through the Federal Tort Claims Act, is responsible to injured persons for the common law torts of its employees in the same manner in which the common law historically has recognized the responsibility of an employer for torts committed by its employees within the scope of their employment.
      “(3) Because Federal employees for many years have been protected from personal common law tort liability by a broad based immunity, the Federal Tort Claims Act has served as the sole means for compensating persons injured by the tortious conduct of Federal employees.
      “(4) Recent judicial decisions, and particularly the decision of the United States Supreme Court in Westfall v. Erwin, have seriously eroded the common law tort immunity previously available to Federal employees.
      “(5) This erosion of immunity of Federal employees from common law tort liability has created an immediate crisis involving the prospect of personal liability and the threat of protracted personal tort litigation for the entire Federal workforce.
      “(6) The prospect of such liability will seriously undermine the morale and well being of Federal employees, impede the ability of agencies to carry out their missions, and diminish the vitality of the Federal Tort Claims Act as the proper remedy for Federal employees torts.” §2(a), 102 Stat. 4663, 28 U. S. C. §2671 note.

       The members of the panel were Learned Hand, Chief Judge, and Augustus N. Hand and Charles E. Clark, Circuit Judges.

       Cong. Globe, 37th Cong., 2d Sess., App. 2 (1861).


source: Caselaw Access Project

author: Justice Blackmun

license: Public Domain

text:
    BUILDING & CONSTRUCTION TRADES COUNCIL OF THE METROPOLITAN DISTRICT v. ASSOCIATED BUILDERS & CONTRACTORS OF MASSACHUSETTS/RHODE ISLAND, INC., et al.
    No. 91-261.
    Argued December 9, 1992
    Decided March 8, 1993

      Blackmun, J., delivered the opinion for a unanimous Court.

      Charles Fried argued the cause for petitioners. With him on the briefs were David L. Shapiro, John M. Stevens, Arthur G. Telegen, H. Reed Witherby, Mary R. Jeka, Steven H. Goldberg, William J. Curtin, E. Carl Uehlein, Jr., Laurence J. Cohen, Victoria L. Bor, Walter Kamiat, and Laurence Gold.

      Deputy Solicitor General Mahoney argued the cause for the United States as amicus curiae urging reversal. With her on the briefs were Solicitor General Starr, Edwin S. Kneedler, Jerry M. Hunter, Nicholas E. Karatinos, Norton J. Come, Linda Sher, and John Emad Arbab.

      Maurice Baskin argued the cause for respondents. With him on the briefs was Carol Chandler.

      Together with No. 91-274, Massachusetts Water Resources Authority et al. v. Associated Builders & Contractors of Massachusetts/Rhode Island, Inc., et al., also on certiorari to the same court.

      Briefs of amici curiae urging reversal were filed for the Commonwealth of Massachusetts et al. by Scott Harshbarger, Attorney General of Massachusetts, and Douglas H. Wilkins, Assistant Attorney General, Hubert H. Humphrey III, Attorney General of Minnesota, Robert J. Del Tufo, Attorney General of New Jersey, and Frank J. Kelley, Attorney General of Michigan; for Mayor Raymond L. Flynn by Albert W. Wallis; and for the National Constructors Association et al. by Robert W. Kopp and John Gaal.

      Briefs of amici curiae urging affirmance were filed for the Associated General Contractors of America by Glen D. Hager, Richard F. Shaw, and Michael E. Kennedy; for the Chamber of Commerce of the United States of America by Clifton S. Elgarten, Stephen A Bokat, Robin S. Conrad, and Mona C. Zeiberg; for Master Printers of America by Francis T. Coleman and William B. Cowen; for the Merit Shop Foundation et al. by Bruce J. Ennis, Jr.; for the National Right to Work Legal Defense Foundation, Inc., by Hugh L. Reilly, W. James Young, and Edwin Vieira, Jr.; and for the Utility Contractors Association of New England, Inc., et al. by Stephen S. Ostrach and Richard D. Wayne.

   Justice Blackmun

delivered the opinion of the Court.

The issue in this litigation is whether the National Labor Relations Act (NLRA), 49 Stat. 449, as amended, 29 U. S. C. § 151 et seq., pre-empts enforcement by a state authority, acting as the owner of a construction project, of an otherwise lawful prehire collective-bargaining agreement negotiated by private parties.

I

The Massachusetts Water Resources Authority (MWRA) is an independent government agency charged by the Massachusetts Legislature with providing water-supply services, sewage collection, and treatment and disposal services for the eastern half of Massachusetts. Mass. Gen. Laws Ann., ch. 92 App., § 1-1 et seq. (1993). Following a lawsuit arising out of its failure to prevent the pollution of Boston Harbor, in alleged violation of the Federal Water Pollution Control Act, 86 Stat. 816, as amended, 33 U. S. C. § 1251 et seq., MWRA was ordered to clean up the harbor. See United States v. Metropolitan Dist. Comm’n, 757 F. Supp. 121, 123 (Mass. 1991). The cleanup project was expected to cost $6.1 billion over 10 years. 935 F. 2d 345, 347 (CA1 1991). The District Court required construction to proceed without interruption, making no allowance for delays from causes such as labor disputes. App. 71 (Affidavit of Richard D. Fox, Director of the Program Management Division of MWRA). MWRA has primary responsibility for the project. Under its enabling statute and the Commonwealth’s public-bidding laws, MWRA provides the funds for construction (assisted by state and federal grants), owns the sewage-treatment facilities to be built, establishes all bid conditions, decides all contract awards, pays the contractors, and generally supervises the project. See 935 F. 2d, at 347 (citing Mass. Gen. Laws Ann., ch. 92 App., §1-1 et seq. (1993). Mass. Gen. Laws §§ 149:44A to 149:44I, and 30:39M (1990)).

In the spring of 1988, MWRA selected Kaiser Engineers, Inc., as its project manager. Kaiser was to be primarily in charge of managing and supervising construction activity. Kaiser also was to advise MWRA on the development of a labor-relations policy that would maintain worksite harmony, labor-management peace, and overall stability throughout the duration of the project. To that end, Kaiser suggested to MWRA that Kaiser be permitted to negotiate an agreement with the Building and Construction Trades Council and affiliated organizations (BCTC) that would assure labor stability over the life of the project. App. to Pet. for Cert. in No. 91-274, p. 75a (MWRA Pet. App.). MWRA accepted Kaiser’s suggestion, and Kaiser accordingly proceeded to negotiate the Boston Harbor Wastewater Treatment Facilities Project Labor Agreement (Agreement). Ibid. The Agreement included: recognition of BCTC as the exclusive bargaining agent for all craft employees; use of specified methods for resolving all labor-related disputes; a requirement that all employees be subject to union-security provisions compelling them to become union members within seven days of their employment; the primary use of BCTC’s hiring halls to supply the project’s craft labor force; a 10-year no-strike commitment; and a requirement that all contractors and subcontractors agree to be bound by the Agreement. 935 F. 2d, at 348. See generally MWRA Pet. App. 107a (full text of Agreement). MWRA’s board of directors approved and adopted the Agreement in May 1989 and directed that Bid Specification 13.1 be incorporated into its solicitation of bids for work on the project. 935 F. 2d, at 347. Bid Specification 13.1 provides in pertinent part:

“[E]ach successful bidder and any and all levels of subcontractors, as a condition of being awarded a contract or subcontract, will agree to abide by the provisions of the Boston Harbor Wastewater Treatment Facilities Project Labor Agreement as executed and effective May 22, 1989, by and between Kaiser ... on behalf of [MWRA] and [BCTC] . . . and will be bound by the provisions of that agreement in the same manner as any other provision of the contract.” MWRA Pet. App. 141a-142a.

In March 1990, a contractors’ association not a party to this litigation filed a charge with the National Labor Relations Board (NLRB) contending that the Agreement violated the NLRA. The NLRB General Counsel refused to issue a complaint, finding: (1) that the Agreement is a valid prehire agreement under § 8(f) of the NLRA, 29 U. S. C. § 158(f), which authorizes such agreements in the construction industry; and (2) that the Agreement’s provisions limiting work on the project to contractors who agree to abide by the Agreement are lawful under the construction-industry proviso to § 8(e), 29 U. S. C. § 158(e). This proviso sets forth an exception from § 8(e)’s prohibition against “hot cargo” agreements that require an employer to refrain from doing business with any person not agreeing to be bound by a prehire agreement. Building & Trades Council (Kaiser Engineers, Inc.), Case 1-CE-71, NLRB Advice Memo, June 25, 1990, MWRA Pet. App. 88a.

Also in March 1990, respondent Associated Builders and Contractors of Massachusetts/Rhode Island, Inc. (ABC), an organization representing nonunion construction-industry employers, brought this suit against MWRA, Kaiser, and BCTC, seeking, among other things, to enjoin enforcement of Bid Specification 13.1. ABC alleged pre-emption under the NLRA, pre-emption under § 514(c) of the Employee Retirement Income Security Act of 1974, 88 Stat. 897, 29 U. S. C. § 1144(c) (ERISA), violations of the Equal Protection and Due Process Clauses of the Fourteenth Amendment, conspiracy to reduce competition in violation of the Sherman Act, 26 Stat. 209, as amended, 15 U. S. C. § 1, and various state-law claims. Only NLRA pre-emption is at issue here.

The United States District Court for the District of Massachusetts rejected each of ABC’s claims and denied its motion for a preliminary injunction. MWRA Pet. App. 76a-83a. The Court of Appeals for the First Circuit reversed and directed entry of a preliminary injunction restraining the use of Bid Specification 13.1, reaching only the issue of NLRA pre-emption. 135 LRRM 2713 (1990). The Court of Appeals subsequently granted a petition for rehearing en banc, vacating the panel opinion. MWRA Pet. App. 84a. Upon rehearing en banc, the Court of Appeals, by a 3-to-2 vote, again reversed the judgment of the District Court, once more reaching only the pre-emption issue. 935 F. 2d, at 359-360. The court held that MWRA’s intrusion into the bargaining process was pervasive and not the sort of peripheral regulation that would be permissible under San Diego Building Trades Council v. Garmon, 359 U. S. 236 (1959). See 935 F. 2d, at 353. It also held that Bid Specification 13.1 was pre-empted under Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S. 132 (1976), because MWRA was regulating activities that Congress intended to be unrestricted by governmental power. Because of the importance of the issue, we granted certiorari, 504 U. S. 908 (1992).

II

The NLRA contains no express pre-emption provision. Therefore, in accordance with settled pre-emption principles, we should not find MWRA’s bid specification pre-empted “ ‘ “unless it conflicts with federal law or would frustrate the federal scheme, or unless [we] discern from the totality of the circumstances that Congress sought to occupy the field to the exclusion of the States.’”” Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S. 724, 747-748 (1985) (citations omitted). We are reluctant to infer pre-emption. See Cipollone v. Liggett Group, Inc., 505 U. S. 504, 516 (1992); Rice v. Santa Fe Elevator Corp., 331 U. S. 218, 230 (1947). “Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law.” Maryland v. Louisiana, 451 U. S. 725, 746 (1981). With these general principles in mind, we turn to the particular pre-emption doctrines that have developed around the NLRA.

In Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 748, we noted: “The Court has articulated two distinct NLRA pre-emption principles.” The first, “Garmon preemption,” see San Diego Building Trades Council v. Gar-mon, supra, forbids state and local regulation of activities that are “protected by § 7 of the [NLRA], or constitute an unfair labor practice under § 8.” 359 U. S., at 244. See also Garner v. Teamsters, 346 U. S. 485, 498-499 (1953) (“[W]hen two separate remedies are brought to bear on the same activity, a conflict is imminent”). Garmon pre-emption prohibits regulation even of activities that the NLRA only arguably protects or prohibits. See Wisconsin Dept. of Industry v. Gould Inc., 475 U. S. 282, 286 (1986). This rule of pre-emption is designed to prevent conflict between, on the one hand, state and local regulation and, on the other, Congress’ “integrated scheme of regulation,” Garmon, 359 U. S., at 247, embodied in §§7 and 8 of the NLRA, which includes the choice of the NLRB, rather than state or federal courts, as the appropriate body to implement the Act. Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 748-749, and n. 26.

In Garmon, this Court held that a state court was precluded from awarding damages to employers for economic injuries resulting from peaceful picketing by labor unions that had not been selected by a majority of employees as their bargaining agent. 359 U. S., at 246. The Court said: “Our concern is with delimiting areas of conduct which must be free from state regulation if national policy is to be left unhampered.” Ibid. In Gould, we held that the NLRA pre-empts a statute that disqualifies from doing business with the State persons who have violated the NLRA three times within a 5-year period. We emphasized there that “the Garmon rule prevents States not only from setting forth standards of conduct inconsistent with the substantive requirements of the NLRA, but also from providing their own regulatory or judicial remedies for conduct prohibited or arguably prohibited by the Act.” 475 U. S., at 286 (citing 359 U. S., at 247).

A second pre-emption principle, “Machinists preemption,” see Machinists v. Wisconsin Employment Relations Comm’n, 427 U. S., at 147, prohibits state and municipal regulation of areas that have been left “ ‘to be controlled by the free play of economic forces.’” Id., at 140 (citation omitted). See also Golden State Transit Corp. v. Los Angeles, 475 U. S. 608, 614 (1986) (Golden State I); Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 111 (1989) (Golden State II). Machinists pre-emption preserves Congress’ “intentional balance ‘“between the uncontrolled power of management and labor to further their respective interests.’”” Golden State I, 475 U. S., at 614 (citations omitted).

In Machinists, we held that the Wisconsin Employment Relations Commission could not designate as an unfair labor practice under state law a concerted refusal by a union and its members to work overtime, because Congress did not mean such self-help activity to be regulable by the States. 427 U. S., at 148-150. We said that it would frustrate Congress’ intent to “sanction state regulation of such economic pressure deemed by the federal Act ‘desirabl[y] . . . left for the free play of contending economic forces . . . .” Id., at 150 (citation omitted). In Golden State I, we applied the Machinists doctrine to hold that the city of Los Angeles was pre-empted from conditioning renewal of a taxicab operating license upon the settlement of a labor dispute. 475 U. S., at 618. We reiterated the principle that a “local government ... lacks the authority to ‘ “introduce some standard of properly ‘balanced’ bargaining power” ... or to define “what economic sanctions might be permitted negotiating parties in an ‘ideal’ or ‘balanced’ state of collective bargaining.”’” Id., at 619 (quoting Machinists, 427 U. S., at 149-150) (internal citation omitted). In Golden State II, supra, we determined that the taxicab employer who was challenging the city’s conduct in Golden State I was entitled to maintain an action under 42 U. S. C. § 1983 for compensatory damages against the city. In so holding, we stated that the Machinists rule created a zone free from all regulations, whether state or federal. 493 U. S., at 112.

III

When we say that the NLRA pre-empts state law, we mean that the NLRA prevents a State from regulating within a protected zone, whether it be a zone protected and reserved for market freedom, see Machinists, or for NLRB jurisdiction, see Garmon. A State does not regulate, however, simply by acting within one of these protected areas. When a State owns and manages property, for example, it must interact with private participants in the marketplace. In so doing, the State is not subject to pre-emption by the NLRA, because pre-emption doctrines apply only to state regulation.

Our decisions in this area support the distinction between government as regulator and government as proprietor. We have held consistently that the NLRA was intended to supplant state labor regulation, not all legitimate state activity that affects labor. In Machinists, for example, we referred to Congress’ pre-emptive intent to “leave some activities unregulated,” 427 U. S., at 144 (emphasis added), and held that the activities at issue — workers deciding together to refuse overtime work — were not “regulable by States,” id., at 149 (emphasis added). In Golden State I, we held that the reason Los Angeles could not condition renewal of a taxicab franchise upon settlement of a labor dispute was that “Machinists pre-emption ... precludes state and municipal regulation ‘concerning conduct that Congress intended to be unregulated.’” 475 U. S., at 614 (emphasis added) (quoting Metropolitan Life Ins. Co. v. Massachusetts, 471 U. S., at 749). We refused to permit the city’s exercise of its regulatory power of license nonrenewal to restrict Golden State’s right to use lawful economic weapons in its dispute with its union. See 475 U. S., at 615-619. As petitioners point out, a very different case would have been presented had the city of Los Angeles purchased taxi services from Golden State in order to transport city employees. Brief for Petitioners 35. In that situation, if the strike had produced serious interruptions in the services the city had purchased, the city would not necessarily have been pre-empted from advising Golden State that it would hire another company if the labor dispute were not resolved and services resumed by a specific deadline.

In Gould, we rejected the argument that the State was acting as proprietor rather than regulator for purposes of Garmon pre-emption when the State refused to do business with persons who had violated the NLRA three times within five years. We noted in doing so that in that case, “debarment ... serves plainly as a means of enforcing the NLRA.” 475 U. S., at 287. We said there that “[t]he State concedes, as we think it must, that the point of the statute is to deter labor law violations”; we concluded that “[n]o other purpose could credibly be ascribed.” Ibid.

Respondents quote the following passage from Gould, arguing that it stands for the proposition that the State as proprietor is subject to the same pre-emption limitations as the State as regulator:

“Nothing in the NLRA, of course, prevents private purchasers from boycotting labor law violators. But government occupies a unique position of power in our society, and its conduct, regardless of form, is rightly subject to special restraints. Outside the area of Commerce Clause jurisprudence, it is far from unusual for federal law to prohibit States from making spending decisions in ways that are permissible for private parties .... The NLRA, moreover, has long been understood to protect a range of conduct against state but not private interference .... The Act treats state action differently from private action not merely because they frequently take different forms, but also because in our system States simply are different from private parties and have a different role to play.” Id., at 290.

The above passage does not bear the weight that respondents would have it support. The conduct at issue in Gould was a state agency’s attempt to compel conformity with the NLRA. Because the statute at issue in Gould addressed employer conduct unrelated to the employer’s performance of contractual obligations to the State, and because the State’s reason for such conduct was to deter NLRA violations, we concluded: “Wisconsin ‘simply is not functioning as a private purchaser of services,’ . . . [and therefore,] for all practical purposes, Wisconsin’s debarment scheme is tantamount to regulation.” Id., at 289. We emphasized that we were “not say[ing] that state purchasing decisions may never be influenced by labor considerations.” Id., at 291.

The conceptual distinction between regulator and purchaser exists to a limited extent in the private sphere as well. A private actor, for example, can participate in a boycott of a supplier on the basis of a labor policy concern rather than a profit motive. See id., at 290. The private actor under such circumstances would be attempting to “regulate” the suppliers and would not be acting as a typical proprietor. The fact that a private actor may “regulate” does not mean, of course, that the private actor may be “pre-empted” by the NLRA; the Supremacy Clause does not require pre-emption of private conduct. Private actors therefore may “regulate” as they please, as long as their conduct does not violate the law. As the above passage in Gould makes clear, however, States have a qualitatively different role to play from private parties. Ibid. When the State acts as regulator, it performs a role that is characteristically a governmental rather than a private role, boycotts notwithstanding. Moreover, as regulator of private conduct, the State is more powerful than private parties. These distinctions are far less significant when the State acts as a market participant with no interest in setting policy.

In Gould, we did not address fully the implications of these distinctions. We left open the question whether a State may act without offending the pre-emption principles of the NLRA when it acts as a proprietor and its acts therefore are not “tantamount to regulation” or policymaking. As explained more fully below, we now answer this question in the affirmative.

IV

Permitting the States to participate freely in the marketplace is not only consistent with NLRA pre-emption principles generally but also, in these cases, promotes the legislative goals that animated the passage of the §§8(e) and (f) exceptions for the construction industry. In 1959, Congress amended the NLRA to add § 8(f) and modify § 8(e). Section 8(f) explicitly permits employers in the construction industry — but no other employers — to enter into prehire agreements. Prehire agreements are collective-bargaining agreements providing for union recognition, compulsory union dues or equivalents, and mandatory use of union hiring halls, prior to the hiring of any employees. 935 F. 2d, at 356; Jim McNeff, Inc. v. Todd, 461 U. S. 260, 265-266 (1983). The 1959 amendment adding a proviso to subsection (e) permits a general contractor’s prehire agreement to require an employer not to hire other contractors performing work on that particular project site unless they agree to become bound by the terms of that labor agreement. See Woelke & Romero Framing, Inc. v. NLRB, 456 U. S. 645, 657 (1982). Section 8(f) contains a final proviso that permits employees, once hired, to utilize the NLRB election process under §§9(c) and (e) of the Act, 29 U. S. C. §§ 159(c) and (e), if they wish to reject the bargaining representative or to cancel the union security provisions of the prehire agreement. See NLRB v. Iron Workers, 434 U. S. 335, 345 (1978).

It is undisputed that the Agreement between Kaiser and BCTC is a valid labor contract under §§8(e) and (f). As noted above, those sections explicitly authorize this type of contract between a union and an employer like Kaiser, which is engaged primarily in the construction industry, covering employees engaged in that industry.

Of course, the exceptions provided for the construction industry in §§8(e) and (f), like the prohibitions from which they provide relief, are not made specifically applicable to the State. This is because the State is excluded from the definition of the term “employer” under the NLRA, see 29 U. S. C. § 152(2), and because the State, in any event, is acting not as an employer but as a purchaser in this case. Nevertheless, the general goals behind passage of §§ 8(e) and (f) are still relevant to determining what Congress intended with respect to the State and its relationship to the agreements authorized by these sections.

It is evident from the face of the statute that in enacting exemptions authorizing certain kinds of project labor agreements in the construction industry, Congress intended to accommodate conditions specific to that industry. Such conditions include, among others, the short-term nature of employment which makes posthire collective bargaining difficult, the contractor’s need for predictable costs and a steady supply of skilled labor, and a longstanding custom of prehire bargaining in the industry. See S. Rep. No. 187, 86th Cong., 1st Sess., 28, 55-56 (1959); H. R. Rep. No. 741, 86th Cong., 1st Sess., 19-20 (1959).

There is no reason to expect these defining features of the construction industry to depend upon the public or private nature of the entity purchasing contracting services. To the extent that a private purchaser may choose a contractor based upon that contractor’s willingness to enter into a pre-hire agreement, a public entity as purchaser should be permitted to do the same. Confronted with such a purchaser, those contractors who do not normally enter such agreements are faced with a choice. They may alter their usual mode of operation to secure the business opportunity at hand, or seek business from purchasers whose perceived needs do not include a project labor agreement. In the absence of any express or implied indication by Congress that a State may not manage its own property when it pursues its purely proprietary interests, and where analogous private conduct would be permitted, this Court will not infer such a restriction. See, e. g., Maryland v. Louisiana, 451 U. S., at 746 (“Consideration under the Supremacy Clause starts with the basic assumption that Congress did not intend to displace state law”). Indeed, there is some force to petitioners’ argument, Brief for Petitioners 25, that denying an option to public owner-developers that is available to private owner-developers itself places a restriction on Congress’ intended free play of economic forces identified in Machinists.

V

In the instant case, MWRA acted on the advice of a manager hired to organize performance of a cleanup job over which, under Massachusetts law, MWRA is the proprietor. There is no question but that MWRA was attempting to ensure an efficient project that would be completed as quickly and effectively as possible at the lowest cost. As petitioners note, moreover, Brief for Petitioners 26, the challenged action in this litigation was specifically tailored to one particular job, the Boston Harbor cleanup project. There is therefore no basis on which to distinguish the incentives at work here from those that operate elsewhere in the construction industry, incentives that this Court has recognized as legitimate. See Woelke & Romero Framing Co. v. NLRB, 456 U. S., at 662, and n. 14.

We hold today that Bid Specification 13.1 is not government regulation and that it is therefore subject to neither Garmon nor Machinists pre-emption. Bid Specification 13.1 constitutes proprietary conduct on the part of the Commonwealth of Massachusetts, which legally has enforced a valid project labor agreement. As Chief Judge Breyer aptly noted in his dissent in the Court of Appeals, “when the MWRA, acting in the role of purchaser of construction services, acts just like a private contractor would act, and conditions its purchasing upon the very sort of labor agreement that Congress explicitly authorized and expected frequently to find, it does not ‘regulate’ the workings of the market forces that Congress expected to find; it exemplifies them.” 935 F. 2d, at 361.

Because we find that Bid Specification 13.1 is not preempted by the NLRA, it follows that a preliminary injunction against enforcement of this bid specification was improper. We therefore reverse the judgment of the Court of Appeals and remand these cases for further proceedings consistent with this opinion.

It is so ordered.

       Massachusetts competitive-bidding laws require MWRA to state its preference for a contract term, such as a project labor agreement, in the form of a bid specification. These laws, which MWRA’s Enabling Act explicitly incorporates, see Mass. Gen. Laws Ann., ch. 92 App., § 1—8(g) (1993) (incorporating Mass. Gen. Laws §§30:39M, and 149:44A to 149:44H), require that the competitive-bidding process be carried out by the awarding authority. See Modern Continental Constr. Co. v. Lowell, 391 Mass. 829, 836, 465 N. E. 2d 1173, 1177-1178 (1984).

       Respondents suggest in their brief, Brief for Respondents 22, n. 12, that under H. K. Porter Co. v. NLRB, 397 U. S. 99, 103 (1970), § 8(d) of the NLRA expressly prohibits the conduct of MWRA at issue in this case. The Court of Appeals did not rely on this section of the statute, nor did we grant certiorari on this question. We therefore decline the invitation to address the application, if any, of § 8(d) to Bid Specification 13.1.