author: Justice Stevens

text:
    IMMIGRATION AND NATURALIZATION SERVICE et al. v. NATIONAL CENTER FOR IMMIGRANTS’ RIGHTS, INC., et al.
    No. 90-1090.
    Argued November 13, 1991
    Decided December 16, 1991

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

      Stephen J. Marzen argued the cause for petitioners. With him on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, Barbara L. Herwig, and John F. Daly.

      Peter A. Schey argued the cause for respondents. With him on the brief were Michael Rubin and Robert Gibbs.

       Briefs of amici curiae urging affirmance were filed for the American Bar Association by John J. Curtin, Jr., and Jonathan L. Abram; for the American Immigration Lawyers Association by Joshua Floum, Maureen Callahan, and Lawrence H. Rudnick; and for the International Human Rights Law Group by Nicholas W. Fels and Steven M. Schneebaum.

   Justice Stevens

delivered the opinion of the Court.

This case presents a narrow question of statutory construction. Section 242(a) of the Immigration and Nationality Act (INA) authorizes the Attorney General to arrest excludable aliens and, pending a determination of their deportability, either to hold them in custody or to release them on bond “containing such conditions as the Attorney General may prescribe.” 66 Stat. 208, as amended, 8 U. S. C. § 1252(a)(1). We granted the Government's petition for cer-tiorari to decide "[w]hether th[at] provision prohibits promulgation of a rule generally requiring that release bonds contain a condition forbidding unauthorized employment pending determination of deportability." Pet. for Cert. I.

I

Prior to 1983, the regulations of the Immigration and Naturalization Service (INS) provided that, when an alien was released from custody pending deportation or exclusion proceedings, the INS could in its discretion include in the bond obtained to secure the alien's release a condition barring unauthorized employment. 8 CFR § 103.6(a)(2)(ii) (1982). In 1983, the Attorney General amended those regulations to include the following provision:

"(ii) Condition against unauthorized employment. A condition barring employment shall be included in an appearance and delivery bond in connection with a deportation proceeding or bond posted for the release of an alien in exclusion proceedings, unless the District Director determines that employment is appropriate." 8 CFR § 103.6(a)(2)(il) (1991).

In effect, the new regulation made “no-employment conditions” the rule rather than the exception.

Several individuals and organizations (respondents) filed this action challenging the validity of the new rule on statutory and constitutional grounds. Their complaint alleged that the new rule was invalid on its face and therefore could not be enforced even against aliens who may not lawfully accept employment in this country.

After finding that the plaintiffs had a fair chance of success on the merits, either on the ground that the statute did not authorize no-employment conditions because such conditions were irrelevant to securing an alien’s appearance at a subsequent deportation hearing, or on the ground that the regulation violated an alien’s constitutional right to due process, the District Court entered a nationwide preliminary injunction against enforcement of the rule. The Court of Appeals affirmed in part, but held that the scope of the injunction should be limited to the named plaintiffs unless the District Court granted their motion to certify a class. National Center for Immigrants’ Rights, Inc. v. INS, 743 F. 2d 1365 (CA9 1984).

On remand, the District Court entered summary judgment in favor of respondents on the ground that the regulation was beyond the statutory authority of the Attorney General and also certified a class consisting of “all those persons who have been or may in the future be denied the right to work pursuant to 8 CFR § 103.6.” National Center for Immigration Rights, Inc. v. INS, No. CV 83-7927-KN (CD Cal., July 9,1985), p. 1. The Court of Appeals again affirmed, concluding that the Attorney General’s statutory “authority under 8 U. S. C. § 1252(a) of the Act is limited to the imposition of bond conditions which tend to insure the alien’s appearance at future deportation proceedings. The peripheral concern of the Act with the employment of illegal aliens is not sufficient to support the imposition of a no-employment condition in every bond.” National Center for Immigrants’ Rights, Inc. v. INS, 791 F. 2d 1351, 1356 (CA9 1986).

The Government petitioned for certiorari raising the same question that is now before us. The Government argued that because the regulation only barred “unauthorized” work by aliens, it merely added the threat of a bond revocation to the already existing prohibition against unauthorized employment. In view of the then-recent enactment of the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, which cast serious doubt on the Court of Appeals’ conclusion that employment of undocumented aliens was only a “peripheral concern” of the immigration laws, we vacated that court’s judgment and remanded for further consideration in the light of IRCA. 481 U. S. 1009 (1987). On remand, the District Court adhered to its original opinion that the Attorney General’s discretion to impose bond conditions is “limited to those [conditions] aimed at obtaining an undocumented worker’s appearance at' future immigration proceedings.” App. to Pet. for Cert. 68a. The District Court noted that the enactment of employer sanctions in IRCA made the question whether the employment of undocumented aliens is merely a “peripheral concern” of the INA more difficult, but concluded that this change in the law did not broaden the Attorney General’s discretion.

A divided panel of the Court of Appeals again affirmed, but the majority did not rely on the District Court’s reasoning. 913 F. 2d 1350 (CA9 1990). The majority first rejected the Government’s interpretation of the new regulation as merely barring “‘unauthorized employment’”; the Court of Appeals construed the rule as a “blanket bond condition” applicable to aliens authorized to work as well as to those who had no such authority. Id., at 1353-1358. The majority then concluded that the Attorney General exceeded his statutory authority in promulgating the regulation, ruling that the Attorney General’s discretion in imposing bond conditions was subject to two constraints. First, the court ruled, a bond condition must relate either to securing the alien’s appearance at a subsequent hearing or to protecting the Nation from danger posed by active subversives. A no-employment condition was not related to either of these purposes. Id., at 1358-1372. Second, the Court of Appeals concluded, bond conditions may only be imposed on an individualized basis and therefore the “blanket rule” promulgated by the Attorney General was invalid. Id., at 1373-1374.

We granted certiorari, 499 U. S. 946 (1991), and now reverse.

II

It is appropriate that we preface our analysis by noting the narrowness of the question before us: We must decide whether the regulation on its face is invalid as inconsistent with the Attorney General’s statutory authority.

We first observe that the plaintiffs framed their challenge to the regulation as a facial challenge. See App. 16-27. We recognize that it is possible that the no-work condition may be improperly imposed on some aliens. That the regulation may be invalid as applied in such cases, however, does not mean that the regulation is facially invalid because it is without statutory authority. Cf. American Hospital Assn. v. NLRB, 499 U. S. 606, 619 (1991); Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 632-633, n. 10 (1989). In this case, we need not and do not address such “as-applied” challenges to the regulation.

We also note that, in invalidating the contested regulation, the Court of Appeals relied solely on statutory grounds, and did not reach the plaintiffs’ constitutional challenge. See 913 F. 2d, at 1358, n. 8. Accordingly, only the plaintiffs’ statutory challenge is before us and we resolve none of the constitutional claims raised by the plaintiffs’ initial complaint.

I H-< ) — I

The threshold question m this case concerns interpretation of the regulation, which as the Government itself concedes, “is not unambiguous.” Brief for Petitioners 23, n. 14. Indeed, as the dissenting judge in the Court of Appeals suggested, much of this controversy could have been avoided by a more precise drafting of the regulation, either initially or in response to any of the several lower court opinions. See 913 F. 2d, at 1375 (Trott, J., dissenting).

The most critical ambiguity in the regulation is whether the proposed no-work conditions bar all employment or only unauthorized employment — stated another way, whether such conditions will be imposed on all bonds or only on bonds issued for aliens who lack authorization to work. Although the relevant paragraph of the regulation is entitled “Condition against unauthorized employment,” the text describes the restriction more broadly, as a “condition barring employment.” Based in part on this latter phrase, the Court of Appeals interpreted the regulation as barring all employment, whether authorized or unauthorized. In contrast, the Government contends that the regulation only concerns the imposition of bond conditions in the case of aliens who lack work authorization in the first place.

We agree with the Government’s interpretation of the regulation. In other contexts, we have stated that the title of a statute or section can aid in resolving an ambiguity in the legislation’s text. See Mead Corp. v. Tilley, 490 U. S. 714, 723 (1989); FTC v. Mandel Bros., Inc., 359 U. S. 385, 388-389 (1959). Such analysis obtains in this case as well. The text’s generic reference to “employment” should be read as a reference to the “unauthorized employment” identified in the paragraph’s title. Moreover, an agency’s reasonable, consistently held interpretation of its own regulation is entitled to deference. In this case, the Government has consistently maintained that the contested regulation only implicates bond conditions barring unauthorized employment.

Our conclusion that the regulation does not contemplate the inclusion of no-work conditions in bonds issued to aliens who are authorized to work is further supported by the text of the regulation, the agency’s comments when the rule was promulgated, the operating instructions issued to INS personnel, and the absence of any evidence that the INS has imposed such a condition on any such alien. We therefore accept the Solicitor General’s representation that the INS does not intend to apply the bond condition to prohibit authorized employment.

Accordingly, our decision today will not answer any of the questions concerning the validity of a regulation having the broader meaning ascribed to this regulation by the Court of Appeals. We thus have no occasion to consider whether the release of an alien who is authorized to work could be subjected to a “no-work” condition.

IV

Section 242(a) of the INA grants the Attorney General authority to release aliens under bonds “containing such conditions as the Attorney General may prescribe.” In ruling that the Attorney General’s discretion under this section was limited, the Court of Appeals relied on two cases in which we have interpreted similarly broad language in this statutory scheme: United States v. Witkovich, 353 U. S. 194 (1957), and Carlson v. Landon, 342 U. S. 524 (1952).

In Witkovich, we considered the scope of the Attorney General’s statutory authority to require deportable aliens to provide the INS with information about their “circumstances, habits, associations and activities, and other information . . . deemed fit and proper.” 8 CFR § 242.3(c)(3) (1956). Although the challenged regulation seemed clearly authorized by the words of the statute, the Court concluded that Congress had only intended to authorize “questions reasonably calculated to keep the Attorney General advised regarding the continued availability for departure of aliens whose deportation is overdue.” 353 U. S., at 202. Relying on Witkovich, the Court of Appeals held that § 1252(a) should also be given a narrow construction.

This case differs from Witkovich in important ways. Writing for the Court, Justice Frankfurter explained the reasons for placing a limiting construction on the statutory language:

“The language of § 242(d)(3), if read in isolation and literally, appears to confer upon the Attorney General unbounded authority to require whatever information he deems desirable of aliens whose deportation has not been effected within six months after it has been commanded. The Government itself shrinks from standing on the breadth of these words. But once the tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative. A restrictive meaning for what appear to be plain words may be indicated by the Act as a whole, by the persuasive gloss of legislative history or by the rule of constitutional adjudication, relied on by the District Court, that such a restrictive meaning must be given if a broader meaning would generate constitutional doubts.” Id., at 199.

In this case, the Government’s argument proceeds on the assumption that the “Act as a whole” — including its concern with the employment of excludable aliens — should define the scope of the Attorney General’s discretion. It is respondents who would excise the interest in preventing unauthorized employment from the statutory scheme and confine the Attorney General’s bonding authority to the limited purpose of ensuring the presence of aliens at their deportation hearings. Moreover, the contested regulation, when properly construed as applicable only to unauthorized employment, does not raise “constitutional doubts” and therefore does not militate in favor of a narrow construction of the organic statute. In short, the Court of Appeals’ reliance on Witkovich was misplaced.

The majority below also relied on Carlson. In that case, the Court upheld the Attorney General’s detention (under § 23 of the Internal Security Act of 1950) of deportable members of the Communist Party on the ground that they posed a threat to national security. The Court of Appeals read that case narrowly, as standing for the proposition that the Attorney General may exercise his discretion under § 1252(a) to protect the Nation from active subversion.

This reading of Carlson is too cramped. What was significant in Carlson was not simply the threat of “active subversion,” but rather the fact that Congress had enacted legislation based on its judgment that such subversion posed a threat to the Nation. The Attorney General’s discretion sanctioned in Carlson was wholly consistent with Congress’ intent: “Detention [was] part of [the Internal Security Act]. Otherwise aliens arrested for deportation would have opportunities to hurt the United States during the pendency of deportation proceedings.” 342 U. S., at 538. Thus, the statutory policy that justified the detention was the congressional determination that the presence of alien Communists constituted an unacceptable threat to the Nation.

In this case, the stated and actual purpose of no-work bond conditions was “‘to protect against the displacement of workers in the United States.’” 48 Fed. Reg. 51142 (1983) (citation omitted). We have often recognized that a “primary purpose in restricting immigration is to preserve jobs for American workers.” Sure-Tan, Inc. v. NLRB, 467 U. S. 883, 893 (1984); see also 8 U. S. C. § 1182(a)(14) (defining as a class of excludable aliens those “seeking to enter the United States, for the purpose of performing skilled or unskilled labor” without the appropriate authorization). The contested regulation is wholly consistent with this established concern of immigration law and thus squarely within the scope of the Attorney General’s statutory authority.

V

As a related ground supporting invalidation of the regulation, the Court of Appeals ruled that the regulation did not provide for “individualized decisions” as required by the Act. We agree that the lawful exercise of the Attorney General’s discretion to impose a no-work condition under § 1252(a) requires some level of individualized determination. Indeed in the absence of such judgments, the legitimate exercise of discretion is impossible in this context. We reached a similar conclusion with respect to the determination at issue in Carlson, noting that the findings of “evidence of membership plus personal activity in supporting and extending the [Communist] Party’s philosophy concerning violence g[ave] adequate ground for detention.” 342 U. S., at 541.

However, we believe that the no-work condition regulation, when properly construed and when viewed in the context of the complex regime of immigration law, provides the individualized determinations contemplated in the statute. As noted above, we accept the Attorney General’s interpretation of the regulation as affecting only those aliens who may not lawfully accept employment in this country. In addition, the operating instructions issued to INS personnel in connection with this regulation expressly state that individuals maintaining a colorable claim of citizenship shall not be subject to the no-work condition, see n. 5, supra, and the INS has stated that “[a]liens who have applied for asylum will not be affected by these regulations.” 48 Fed. Reg. 51143 (1983). These facts substantially narrow the reach of the regulation.

Moreover, the Solicitor General has advised us that, in enforcing the regulation, the INS will make “an initial, informal determination [as to] whether the alien holds some status that makes work ‘authorized.’ ” Brief for Petitioners 35. The alien’s burden in that proceeding is easily met, for aliens who are authorized to work generally possess documents establishing that status. Some persons so authorized carry so-called “green cards,” see Saxbe v. Bustos, 419 U. S. 65, 66-68 (1974), others carry employment authorization documents, see 8 CFR § 274a.l2(a) (1991), or registration numbers that will readily identify their status.

This informal process is enhanced by two additional provisions. First, 8 CFR § 103.6(a)(2)(iii) (1991) establishes a procedure under which individual aliens can seek discretionary relief from the INS and secure temporary work authorization. Second, an alien may seek prompt administrative and judicial review of bond conditions. 8 CFR §§3.18, 242.2 (1991).

Taken together all of these administrative procedures are designed to ensure that aliens detained and bonds issued under the contested regulation will receive the individualized determinations mandated by the Act in this context.

For these reasons, we conclude that 8 CFR § 103.6(a)(2)(ii) (1991) is consistent with the Attorney General’s statutory authority under § 242(a) of the INA. The judgment of the Court of Appeals is therefore reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

       The regulation further provides:
      "(iii) Factors to be considered. Only those aliens who upon application under § 109.1(b) of this chapter establish compelling reasons for granting employment authorization may be authorized to accept employment. Among the factors which may be considered when an application is made, are the following:
      "(A) Safeguarding employment opportunities for United States citizens and lawful permanent resident aliens;
      "(B) Prior immigration violations by the alien;
      "(C) Whether there is a reasonable basis for considering discretionary relief; and
      "(D) Whether a United States citizen or lawful permanent resident spouse or children are dependent upon the alien for support, or other equities exist." § 103.6(a)(2)(iii).

       In this regard, it is noteworthy that the Government’s 1986 petition for certiorari framed the question presented as:
      “Whether 8 U. S. C. § 1252(a), which allows the Attorney General, pending determination of deportability of an alien, to release the alien under bond 'containing such conditions as the Attorney General may prescribe,’ permits a condition that forbids the alien to engage in unauthorized, employment pending determination of deportability.” Pet. for Cert, in INS v. National Center for Immigrants’ Rights, O. T. 1986, No. 86-1207, p. I (emphasis supplied).
      This supports the Government’s current representation that it has consistently taken the position that the regulation was never intended to interfere with an alien’s right to engage in authorized employment.

       The critical sentence in the regulation states that the condition shall be included “unless the District Director determines that employment is appropriate.” 8 CFR § 103.6(a)(2)(h) (1991). This language places the burden on the alien of demonstrating that employment is appropriate, but it seems inconceivable that the District Director could determine that employment that had already been authorized was not “appropriate.”

       In response to critical comments on the proposed rule during the rule-making process, the agency categorically stated that “permanent resident aliens are not affected by these release conditions. Until such time as permanent resident status is lost, the permanent resident alien has the right to work in the United States, if released on bond. The Service, therefore, has no intention of applying this condition to a permanent resident alien in exclusion or deportation proceedings.” 48 Fed. Reg. 51143 (1983).

       “Individuals maintaining a colorable claim to U. S. Citizenship and permanent resident aliens, authorized to work in the United States under 8 CFR 109.1(a)(1), shall not be subject to this general prohibition until such time as a final administrative determination of deportability .has been made.” INS Operating Instruction 103.6(i) (Dec. 7,1983).

       The individual plaintiffs alleged that enforcement of the no-work condition would make it difficult, if not impossible, for them to employ counsel and to obtain their release pending a determination of their deportability. None of them, however, alleged-that he or she had been authorized to work in the United States before commencement of his or her deportation proceeding. See App. 34-41. (Although one plaintiff alleged that he had been employed for about six years, he did not allege that he had been authorized to accept work. See id., at 36.)

       Title 8 U. S. C. § 1252(a) provides in pertinent part—
      “Apprehension and deportation of aliens
      “(a) Arrest and custody; review of determination by court; aliens committing aggravated felonies; report to Congressional committees
      “(1) Pending a determination of deportability in the case of any alien as provided in subsection (b) of this section, such alien may, upon warrant of the Attorney General, be arrested and taken into custody. Except as provided in paragraph (2) [regarding mandatory detention of aliens convicted of aggravated felonies], any süch alien taken into custody may, in the discretion of the Attorney General and pending such final determination of deportability, (A) be continued in custody; or (B) be released under bond in the amount of not less than $500 with security approved by the Attorney General, containing such conditions as the Attorney General may prescribe; or (C) be released on conditional parole. But such bond or parole, whether heretofore or hereafter authorized, may be revoked at any time by the Attorney General, in his discretion, and the alien may be returned to custody under the warrant which initiated the proceedings against him and detained until final determination of his deportability. Any court of competent jurisdiction shall have authority to review or revise any determination of the Attorney General concerning detention, release on bond, or parole pending final decision of deportability upon a conclusive showing in habeas corpus proceedings that the Attorney General is not proceeding with such reasonable dispatch as may be warranted by the particular facts and circumstances in the case of any alien to determine deportability.”

       For an early statement of this policy, see H. R. Rep. No. 1365, 82d Cong., 2d Sess., 50-51 (1952) (discussing the INA’s “safeguards for American labor”). This policy of immigration law was forcefully recognized most recently in the IRCA.

       The Solicitor General also notes that “in those rare cases where an alien claims work authorization by status but is unable readily to document such status[,] a preliminary showing of likely success on the merits ... would be grounds for temporary relief.” Brief for Petitioners 36, n. 26 (citing 8 CFR §274a.l2(c)(13)(iii) (1991)).

       This section sets forth the various classes of aliens authorized to accept employment; in each case the INS issues to the alien a document confirming that authorization. Importantly, the INS regulations implementing IRCA also provide for the issuance of such a document pending the resolution of amnesty proceedings. See 8 CFR § 246a.2(n) (1991).

       We realize that the regulation effectively establishes a presumption that undocumented aliens taken into custody are not entitled to work. In view of the fact that over 97 percent of those aliens apparently do not contest their deportability and instead agree to voluntary deportation, INS v. Lopez-Mendoza, 468 U. S. 1032, 1044 (1984), such a presumption is reasonable. Moreover, even within the narrow subclass in which deport-ability is contested, there is no evidence that the presumption cannot be effectively rebutted by those aliens who are entitled to employment, or who have a colorable claim to the right to work. The fact that the rule may make it more difficult for aliens who are not entitled to work to resist deportation is, of course, not a reason for concluding that the regulation exceeds the Attorney General's statutory authority.


source: Caselaw Access Project

author: Justice Kennedy Justice O'Connor,

license: Public Domain

text:
    HILTON v. SOUTH CAROLINA PUBLIC RAILWAYS COMMISSION
    No. 90-848.
    Argued October 8, 1991
    Decided December 16, 1991

      Kennedy, J., delivered the opinion of the Court, in which Rehnquist, C. J., and White, Stevens, and Souter, JJ., joined. Blackmun, J., concurred in the judgment. O’ConnoR, J., filed a dissenting opinion, in which Scalia, J., joined, post, p. 207. Thomas, J., took no part in the consideration or decision of the case.

      Robert J. Beckham argued the cause and filed briefs for petitioner.

      Keating L. Simons III argued the cause and filed a brief for respondent.

         Robert M. Weinberg, Walter Kamiat, and Laurence Gold filed a brief for the American Federation of Labor and Congress of Industrial Organizations as amicus curiae urging reversal.

        Richard Ruda filed a brief for the National Governors’ Association et al. as amici curiae urging affirmance.

   Justice Kennedy

delivered the opinion of the Court.

In this case we must decide whether the Federal Employers’ Liability Act (FELA), 53 Stat. 1404, 45 U. S. C. §§51-60, creates a cause of action against a state-owned railroad, enforceable in state court. We hold that it does, reaffirming in part our decision in Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964).

HH

Petitioner Kenneth Hilton was an employee of the South Carolina Public Railways Commission. The commission, which has some 300 employees, is a common carrier engaged in interstate commerce by railroad and is an agency of the State of South Carolina, having been created by statute in 1969. Hilton alleges he was injured in the scope and course of his employment and that the negligence of the commission was the cause of the accident. In the case now before us the commission is the respondent.

To recover for his injuries, petitioner first filed a FELA action in United States District Court. That case was pending when we announced our decision in Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987), which held that the Jones Act, § 33, 41 Stat. 1007, 46 U. S. C. App. § 688, does not abrogate the States’ Eleventh Amendment immunity. The Jones Act incorporates the remedial scheme of FELA; and, based on his understanding that Eleventh Amendment immunity from Jones Act suits would apply as well to FELA, petitioner dismissed his federal-court action. He refiled his FELA suit in a South Carolina state court, and this is the case now before us.

The state trial court dismissed Hilton’s complaint on the ground that FELA does not authorize an action for money damages against an agency of the State, even if suit is maintained in a state forum. Though acknowledging that in Parden v. Terminal Railway of Alabama Docks Dept. supra, we interpreted FELA to permit those actions, the trial court said that Parden “has been severely limited by subsequent decisions of the Supreme Court.” App. to Pet. for Cert. 22. The court held that Parden “is no longer good law,” id., at 23, and ordered the action dismissed, whereupon Hilton appealed to the South Carolina Supreme Court.

While his appeal was pending, the South Carolina Supreme Court decided Freeman v. South Carolina Public Railways Commission, 302 S. C. 51, 393 S. E. 2d 383 (1990). Addressing the same issue raised by this ease, Freeman held that FELA does not subject States to liability in state-court suits. As did the trial court, the State Supreme Court acknowledged our Parden holding but concluded that in effect it had been overruled by our subsequent course of decisions.

In Parden we held that FELA authorizes suits for damages against state-owned railroads, and that by entering the business of operating a railroad a State waives its Eleventh Amendment immunity from suit in federal court. The latter holding was overruled in Welch, to accord with our more recent Eleventh Amendment jurisprudence, 483 U. S., at 478; but the Welch Court was explicit in declining to decide whether in the Jones Act (or in FELA) Congress intended to create a cause of action against the States. Id., at 476, n. 6 (plurality opinion); see also id., at 495 (White, J., concurring). In other words, the Welch decision did not disturb the statutory-construction holding of Parden.

In addressing the latter issue, the South Carolina court found “dispositive” our decision in Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989). Will was a suit brought in state court under 42 U. S. C. § 1983 against Michigan state officials. We held that a State is not a “person” as that term is used in § 1983, and is not suable under the statute, regardless of the forum where the suit is maintained. In so holding, we relied in part on the lack of any “clear statement” in the statute of a congressional intent to impose liability on the State. In its Freeman decision that controlled its ruling in the instant case, the South Carolina court read Will to hold that a statute will not be interpreted to create a cause of action for money damages against a State unless it contains “unmistakably clear language” showing that Congress intended to do so. Deciding that the text of FELA does not have language conforming to this standard, the Freeman court held that FELA does not subject the States to liability.

When petitioner’s case reached the South Carolina Supreme Court, it affirmed dismissal of the action in a one-sentence per curiam opinion, citing Freeman. We granted certiorari, 498 U. S. 1081 (1991), and now reverse.

II

Our analysis and ultimate determination in this case are controlled and informed by the central importance of stare decisis in this Court’s jurisprudence. Respondent asks us to overrule a 28-year-old interpretation, first enunciated in Farden, that when Congress enacted FELA and used the phrase “[ejvery common carrier by railroad,” 45 U. S. C. § 51, to describe the class of employers subject to its terms, it intended to include state-owned railroads. 377 U. S., at 187-188. Just two Terms ago, in Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299 (1990), we assumed the applicability of FELA to state-owned railroads in finding that the defendant, a bistate compact corporation, had waived any Eleventh Amendment immunity that it may have had. The issue here is whether we should reexamine this longstanding statutory construction. Because of the strong considerations favoring adherence to stare decisis in these circumstances, the answer to that question must be no. Time and time again, this Court has recognized that “the doctrine of stare decisis is of fundamental importance to the rule of law.” Welch, supra, at 494; see also Patterson v. McLean Credit Union, 491 U. S. 164, 172 (1989); Burnet v. Coronado Oil & Gas Co., 286 U. S. 393, 406 (1932) (Brandéis, J., dissenting). Adherence to precedent promotes stability, predictability, and respect for judicial authority. Vasquez v. Hillery, 474 U. S. 264, 266-266 (1986). For all of these reasons, we will not depart from the doctrine of stare decisis without some compelling justification. Arizona v. Rumsey, 467 U. S. 203, 212 (1984).

In the case before us the policies in favor of following stare decisis far outweigh those suggesting departure. “Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done.” Patterson, supra, at 172-173. Congress has had almost 30 years in which it could have corrected our decision in Parden if it disagreed with it, and has not chosen to do so. We should accord weight to this continued acceptance of our earlier holding. Stare decisis has added force when the legislature, in the public sphere, and citizens, in the private realm, have acted in reliance on a previous decision, for in this instance overruling the decision would dislodge settled rights and expectations or require an extensive legislative response. This is so in the case before us.

Workers’ compensation laws in many States specifically exclude railroad workers from their coverage because of the assumption that FELA provides adequate protection for those workers. See, e. g., Colo. Rev. Stat. § 8-41-201 (Supp. 1990); D. C. Code Ann. §36-301(9)(D) (1981); Ind. Code §22-3 — 79(d) (Supp. 1991); La. Rev. Stat. Ann. §23:1037 (West 1985); Neb. Rev. Stat. §48-106(1) (1988). Counsel for respondent in this ease conceded during oral argument that petitioner may be precluded from seeking an alternative remedy under state law for his injuries, because of a like exclusion in South Carolina law. S. C. Code Ann. § 42-1-350 (1976). Our overruling Parden would require these States to reexamine their statutes, meanwhile putting at risk all employees and employers who have been acting on the assumption that they are protected in the event of injuries caused by an employer’s negligence. Overruling Parden would also throw into doubt previous decisions from this Court, cases holding that the entire federal scheme of railroad regulation applies to state-owned railroads. United States v. California, 297 U. S. 175 (1936) (Safety Appliance Act); California v. Taylor, 353 U. S. 553 (1957) (Railway Labor Act); see also Transportation Union v. Long Island R. Co., 455 U. S. 678, 688 (1982). These factors all weigh in favor of adhering to stare decisis, and we cannot find here sufficient, countervailing justifications for departing from our precedents.

III

Respondent argues that the Court has already considered and rejected these arguments for following stare decisis in Welch, 483 U. S., at 478. That is not accurate; and even if it were, Welch is not controlling here. The characterization of Welch is inaccurate because the most vital consideration of our decision today, which is that to confer immunity from state-court suit would strip all FELA and Jones Act protection from workers employed by the States, was not addressed or at all discussed in the Welch decision. Indeed, that omission can best be explained by the assumption, made express in the concurring opinion of Justice White, that the Jones Act (and so too FELA) by its terms extends to the States. This coverage, and the jurisdiction of state courts to entertain a suit free from Eleventh Amendment constraints, is a plausible explanation for the absence in Welch of any discussion of the practical adverse effects of overruling that portion of Parden which pertained only to the Eleventh Amendment, since continued state-court jurisdiction made those effects minimal.

Further, we cannot treat the holding of Welch as determinative of the issue now presented for our decision. As we explained in Welch, supra, at 471, our Eleventh Amendment cases do indeed hold that “Congress may abrogate the States’ constitutionally secured immunity from suit in federal court only by making its intention unmistakably clear in the language of the statute.” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985) (emphasis added). Congressional intent to abrogate Eleventh Amendment immunity must be expressed in the text of the statute; the Court will not look to legislative history in making its inquiry. Dellmuth v. Muth, 491 U. S. 223, 230 (1989). These cases establish a rule of constitutional law based on the Eleventh Amendment. That rule was developed after the Par-den decision, and was found in Welch to have undercut the reasoning of Parden and to require Parden’s Eleventh Amendment holding to be overruled. But as we have stated on many occasions, “the Eleventh Amendment does not apply in state courts.” Will, 491 U. S., at 63-64, citing Maine v. Thiboutot, 448 U. S. 1, 9, n. 7 (1980); Nevada v. Hall, 440 U. S. 410, 420-421 (1979).

The issue becomes, then, a pure question of statutory construction, where the doctrine of stare decisis is most compelling. Respondent argues, and the state courts in this case said, that the statutory-construction holding of Parden is no longer good law because of our later opinion in Will, supra. Respondent would make the result in Will solely a function of our Eleventh Amendment jurisprudence, reading the case to adopt a per se rule prohibiting the interpretation of general liability language to include the States, absent a clear statement by Congress to the effect that Congress intends to subject the States to the cause of action. Respondent argues that in light of Will, the same considerations which led us to a partial overruling of Parden in Welch should govern here.

We think the argument misconstrues the Will decision. Will did not import the entirety of our Eleventh Amendment jurisprudence into the area of statutory construction. It treated the Eleventh Amendment as a relevant consideration. 491 U. S., at 66-67; Hafer v. Melo, 502 U. S. 21, 30 (1991). The primary focus of Will was, as it should have been, on the language and history of § 1983. 491 U. S., at 64, 68-70; cf. Dellmuth v. Muth, supra, at 229-230. If Will had adopted a per se rule of the sort advocated by respondent, that entire discussion would have been unnecessary. The issue in Will and in this case is different from the issue in our Eleventh Amendment cases in a fundamental respect: The latter cases involve the application of a rule of constitutional law, while the former cases apply an “ordinary rule of statutory construction.” Will, supra, at 65. This conclusion is evident from our discussions in EEOC v. Wyoming, 460 U. S. 226, 244, n. 18 (1983), and in Gregory v. Ashcroft, 501 U. S. 452, 470 (1991), last Term. Both cases describe the plain statement rule as “a rule of statutory construction to be applied where statutory intent is ambiguous,” ibid., rather than as a rule of constitutional law; and neither case implicated the Eleventh Amendment. The distinction we draw is also supported by the Court’s decision in Welch, and in particular by the fact that Welch in explicit terms reserved the statutory construction issue we resolve today. 483 U. S., at 476, n. 6.

When the issue to be resolved is one of statutory construction, of congressional intent to impose monetary liability on the States, the requirement of a clear statement by Congress to impose such liability creates a rule that ought to be of assistance to the Congress and the courts in drafting and interpreting legislation. The requirement also serves to make parallel two separate inquiries into state liability: Eleventh Amendment doctrine and canons of statutory interpretation. In most cases, as in Will and Gregory v. Ashcroft, the rule can be followed. The resulting symmetry, making a State’s liability or immunity, as the case may be, the same in both federal and state courts, has much to commend it. It also avoids the federalism-related concerns that arise when the National Government uses the state courts as the exclusive forum to permit recovery under a congressional statute. This is not an inconsequential argument. Symmetry in the law is more than esthetics. It is predictability and order. But symmetry is not an imperative that must override just expectations which themselves rest upon the predictability and order of stare decisis.

In the case before us the clear statement inquiry need not be made and we need not decide whether FELA satisfies that standard, for the rule in any event does not prevail over the doctrine of stare decisis as applied to a longstanding statutory construction implicating important reliance interests. And when the rule is either overcome or inapplicable so that a federal statute does impose liability upon the States, the Supremacy Clause makes that statute the law in every State, fully enforceable in state court. Howlett v. Rose, 496 U. S. 356, 367-368 (1990).

IV

For the reasons we have stated, the judgment of the South Carolina Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.

It is so ordered.

Justice Thomas took no part in the consideration or decision of this case.

Justice Blackmun concurs in the judgment.

Justice O'Connor,

with whom Justice Scalia joins, dissenting.

The Court's decision in this case is an example of the truism that hard cases make bad law. The Court's understandable reluctance to leave petitioner without a remedy leads it to contort and confuse the clear statement doctrine we have articulated in recent opinions. For this reason, I respectfully dissent.

I

The Court invokes stare decisis while at the same time running headlong away from it. In my view, this case is cleanly resolved by applying two recent precedents, Will v. Michigan Dept. of State Police, 491 U. S. 58 (1989), and Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987), not by rehabilitating a decision we have largely repudiated, Parden v. Terminal Railway of Alabama Docks Dept., 377 U. S. 184 (1964).

In Will, we held that if Congress intends to upset the “'usual constitutional balance between the States and the Federal Government,’” it must make its intention to do so unmistakably clear. Will, supra, at 65 (quoting Atascadero State Hospital v. Scanlon, 473 U. S. 234, 242 (1985)). As we determined in that case, a federal statute requiring the States to entertain damages suits against themselves in state courts is precisely the kind of legislation that requires a clear statement, because of the long-established principle that a State cannot normally be sued in its own courts without its consent. Will, supra, at 67.

In Welch, we held that the language of the Jones Act, which applied the Federal Employers’ Liability Act’s (FELA’s) remedial provisions to seamen, did not amount to a clear statement of Congress’ intent to abrogate the States’ Eleventh Amendment sovereign immunity. 483 U. S., at 474-476. In so holding, we expressly stated that “to the extent that Parden v. Terminal Railway ... is inconsistent with the requirement that an abrogation of Eleventh Amendment immunity by Congress must be expressed in unmistakably clear language, it is overruled.” Id., at 478.

The result in this case should follow a fortiori from the reasoning of Will and Welch. We have already decided that a clear statement is necessary before a State may be required to entertain damages suits against itself in its own courts, and we have already decided that FELA’s language does not amount to a clear statement of Congress’ intent to abrogate state sovereign immunity. Stare decisis dictates that we follow the rules we have laid down in Will and Welch, not that we revive a substantially discredited case that litigants and lower courts had every reason to think defunct.

II

The Court tries to drive a wedge between Will and Welch by characterizing the former as a statutory interpretation case and the latter as a constitutional case. The clear statement rule, the Court says, was required in Welch because the Eleventh Amendment was implicated. In Will, by contrast, use of the clear statement rule was somewhat discretionary, because the issue in that ease was a question of statutory interpretation in which the Constitution was not implicated. See ante, at 205-207. Because this case involves state sovereign immunity in state court, not federal court, and the Eleventh Amendment does not by its terms apply, the Court holds that the clear statement rule in this “nonconstitutional” context can be trumped by stare decisis.

The Court’s distinction is untenable. The clear statement rule is not a mere canon of statutory interpretation. Instead, it derives from the Constitution itself. The rule protects the balance of power between the States and the Federal Government struck by the Constitution. Although the Eleventh Amendment spells out one aspect of that balance of power, the principle of federalism underlying the Amendment pervades the constitutional structure: The Constitution gives Congress only limited power to govern the Nation; the States retain power to govern locally. See Dellmuth v. Muth, 491 U. S. 223, 227 (1989) (“ [Abrogation of sovereign immunity upsets ‘the fundamental constitutional balance between the Federal Government and the States,’ . . . placing a considerable strain on ‘[t]he principles of federalism that inform Eleventh Amendment’”) (quoting Atascadero State Hospital v. Scanlon, supra, at 238, and Pennhurst State School and Hospital v. Halderman, 465 U. S. 89, 100 (1984)). Recognizing this basic truth about our governmental structure under the Constitution, we have been wary of extending the effect of congressional enactments into areas traditionally governed by the States, unless Congress has directed us to do so by an unmistakably clear statement. Indeed, in the cases in which we have employed the clear statement rule outside the Eleventh Amendment context, we have recognized the rule’s constitutional dimensions. Gregory v. Ashcroft, 501 U. S. 452, 461 (1991) (“This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere”); Will, 491 U. S., at 65 (“[I]f Congress intends to alter the ‘usual constitutional balance between the States and the Federal Government,’ it must make its intention to do so ‘unmistakably clear in the language of the statute’ ”) (quoting Atascadero State Hospital v. Scanlon, supra, at 242); United States v. Bass, 404 U. S. 336, 349 (1971) (clear statement rule “rooted in .. . concepts of American federalism”). Thus, the Court’s position that we are not required to employ the clear statement rule in this context ignores the constitutional source of the rule.

The Eleventh Amendment spells out one instance, but not the only one, in which respect and forbearance is due from the national to the state governments, a respect that cements our federation in the Constitution. The clear statement rule assumes that Congress will show that respect by not lightly abridging the powers or sovereignty retained by the States. From this standpoint, it makes little sense to apply the clear statement rule to congressional enactments that make the States liable to damages suits in federal courts, but not to apply the clear statement rule to congressional enactments that make the States liable to damages suits in their own courts. Sovereign immunity, a crucial attribute of separate governments, is infringed in both cases. The suggested dichotomy makes even less sense if we consider the remarkable anomaly that these two canons of statutory construction create: a statutory scheme in which state courts are the exclusive avenue for obtaining recovery under & federal statute.

III

The Court gives no guidance to lower courts as to when it will apply the clear statement rule and when it will not. The Court’s obscurity on this point does little to further the goals of stability and predictability that assertedly drive its analysis. The Court says only that stare decisis will prevail over the clear statement rule when Congress has manifested its acquiescence in this Court’s statutory interpretation by its silence, and when citizens have “acted in reliance on a previous decision.” Ante, at 202. Yet we have previously applied the clear statement rule despite the presence of both of these considerations.

Just four years ago, we held that Congress did not manifest its consent to allow States to be sued for FELA damages in federal court, despite congressional silence in the face of our long-established holding in Farden. Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S. 468 (1987). Do the intervening four years make it more likely that Congress has silently consented to the remaining encroachment upon state sovereignty Farden sanctioned? How long must Congress remain silent before we declare its constructive consent to our statutory interpretation? The suggestion that this Court can, in some cases, better divine Congress’ will to change the balance of power between the Federal Government and the States by listening to congressional silence than to a clear legislative statement substitutes telepathy for statutory interpretation.

In deciding when to ignore the requirements of the clear statement rule, the Court also considers the extent to which citizens have relied on our past decisions. This analysis looks to the reliance of the employees who may be without a remedy if FELA does not apply to their state employers. From the standpoint of the States, however, the Court ignores the fact that we generally do not assume States waive their right to challenge an abrogation of their traditional authority just because they have acquiesced in, or even relied on, longstanding congressional regulation. See Welch, 483 U. S., at 473 (constructive consent to suit not sufficient). The “reliance” exception to the clear statement rule thus reinstates a theory of constructive waiver of sovereign immunity that our cases have repeatedly rejected. See ibid.; Atascadero State Hospital v. Scanlon, 473 U. S., at 241, 246-247; Port Authority Trans-Hudson Corp. v. Feeney, 495 U. S. 299, 306 (1990).

In sum, the Court’s newly created exception to the clear statement rule threatens to eliminate it altogether, except when the States’ Eleventh Amendment sovereign immunity is abrogated in federal court. It will be difficult, if not impossible, for lower courts to know when they should apply the rule in interpreting statutes that upset the traditional balance between the State and Federal Governments outside the context of Eleventh Amendment immunity.

> 1 — Í

The Court fears that strict application of our precedents will require a clear statement for all congressional regulation of state railroads. Ante, at 203. That fear is not well founded. The clear statement doctrine recently articulated in Gregory and in Will requires a clear statement by Congress before we assume that it intends to alter the usual constitutional balance of power in areas “traditionally regulated by the States.” Gregory, 501 U. S., at 460. States have traditionally regulated their liability to damages suits; they have not traditionally regulated interstate railroads. See Wabash, St. L. & P. R. Co. v. Illinois, 118 U. S. 557, 577 (1886); Transportation Union v. Long Island R. Co., 455 U. S. 678, 687 (1982). The clear statement rule in this context applies to FELA because it provides for a cause of action for damages; it does not apply to other congressional regulation of state railroads.

Nor would application of the clear statement rule here overrule Port Authority Trans-Hudson Corp. v. Feeney, supra. In Feeney, we held that a State could waive its sovereign immunity from suit and consent to a damages action under FELA. Feeney's underlying assumption, of course, was that Congress had intended to include state-owned railroads in the class of appropriate FELA defendants. If States are not within the contemplated category of defendants, then States could not consent to suit, because they cannot “create a cause of action . . . against an entity whom Congress has not subjected to liability.” Howlett v. Rose, 496 U. S. 356, 376 (1990).

Welch did not hold that railroads owned by States were outside FELA’s category of “[ejvery common carrier by railroad,” however. 45 U. S. C. § 51. In fact, Welch never clarified what would count in the context of FELA as a “clear statement” of congressional intent that States submit to damages suits. Because the aspect of state sovereignty at stake here is immunity from damages suits, the clear statement required should be tailored to that concern. See Gregory v. Ashcroft, 501 U. S. 452 (1991) (when application of federal statute would change state law with respect to tenure of state judges, clear statement rule tailored to question whether Congress intended the statute to apply to state judges, not whether Congress intended the statute to apply to States generally). A “clear statement” in this context, then, should be a statement that “Congress intended to abrogate the States’ immunity from suit.” Dellmuth v. Muth, 491 U. S., at 231.

Congress clearly wanted “[e]very common carrier by railroad” to be subject to suit under FELA. Railroad owners, then, are clearly within the contemplated category of defendants. Congress, however, did not clearly say whether it intended to force States that happen also to be railroad owners to submit to suit without their consent. Indeed, it is quite doubtful that Congress thought it had the power to create causes of action against the States in 1908 when FELA was enacted. See Welch, supra, at 496 (Scalia, J., concurring in part and concurring in judgment). Since, in enacting FELA, Congress has not clearly stated that it wishes to abrogate a State’s immunity from suit, but has said that it wishes to provide a damages remedy to employees of “[ejvery common carrier by railroad,” a State is a proper defendant if it consents to be sued under FELA in its capacity as a railroad owner. But unless a State agrees to be treated as a railroad owner instead of a sovereign, it may not be sued without its consent. As South Carolina has not agreed to throw off its mantle of sovereign immunity, it may not be sued under FELA. I would therefore affirm the judgment of the South Carolina Supreme Court.

The concern that South Carolina Public Railways Commission’s employees will be without a remedy should not determine the result in this case. If we clarified our doctrine, instead of obfuscating it, States could allow other compensation schemes to fill the void left by FELA. We should not so quickly assume that South Carolina will callously ignore the fate of its own workers. Certainly, South Carolina has more of a stake in seeing that its employees are compensated than does Congress or this Court.

Instead of avoiding the implications of our previous decisions, I would adhere to them. The Court’s holding, while premised on fairness, is unfair to the States, courts, and parties that must parse our doctrine applying the clear statement rule. Therefore, I respectfully dissent.

       Section 1 of FELA, 45 U. S. C. § 61, in pertinent part, provides:
      “Every common carrier by railroad while engaging in commerce . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce ...

       The specific statutory construction issue reserved in Welch was not the precise issue before the Court today, but rather whether the language of the Jones Act (“Any seaman who shall suffer personal injury in the course of his employment,” 46 U. S. C. App. § 688) was correctly interpreted by the Court in Petty v. Tennessee-Missouri Bridge Comm’n, 359 U. S. 275, 282-283 (1959), to afford a remedy against the States. Justice White’s concurrence, Welch v. Texas Dept. of Highways and Public Transportation, 483 U. S., at 495, focused on this question, stating that “Congress has not disturbed this construction, and the Court, as I understand it, does not now purport to do so.” The parties, however, agree that the resolution of this issue should be the same for the Jones Act and FELA. We thus assume so for the purposes of this decision.


author: Justice Souter

text:
    WILLIAM “SKY” KING v. ST. VINCENT’S HOSPITAL
    No. 90-889.
    Argued October 16, 1991
    Decided December 16, 1991

      Souter, J., delivered the opinion of the Court, in which all other Members joined, except Thomas, J., who took no part in the consideration or decision of the case.
    Amy L. Wax argued the cause for petitioner. With her on the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Shapiro, and Michael Jay Singer.

      Harry L. Hopkins argued the cause and filed a brief for respondent.
   Justice Souter

delivered the opinion of the Court.

The issue in this case is whether 38 U. S. C. § 2024(d), a provision of what is popularly known as the Veterans’ Reemployment Rights Act, implicitly limits the length of military service after which a member of the Armed Forces retains a right to civilian reemployment. We hold that it does not.

I

In June 1987, petitioner William “Sky” King, a member of the Alabama National Guard, applied to become command sergeant major in the Active Guard/Reserve (AGR) program, and thereby undertook to serve the 3-year tour of duty required by Army regulations of the person holding that position. The next month King learned of his selection and advised his employer, respondent St. Vincent’s Hospital, that he had accepted the Guard’s 3-year full-time appointment. He requested a leave of absence from his hospital job as ostensibly guaranteed by the Act and reported for military duty, as ordered, on August 17. Several weeks later, St. Vincent’s advised him that his request was unreasonable and thus beyond the Act’s guarantee.

After so informing King, St. Vincent’s took the further step of bringing a declaratory judgment action in the United States District Court for the Northern District of Alabama to settle the issue whether the applicable terms of the Act provided reemployment rights after tours of duty as long as King’s. Although the court held that service in the AGR program carried protection under § 2024(d), it nonetheless rendered declaratory judgment for St. Vincent’s on the ground that the request for a 3-year leave of absence was per se unreasonable. In imposing a test of reasonableness on King’s request, the District Court was following the opinion of the Eleventh Circuit in Gulf States Paper Corp. v. Ingram, 811 F. 2d 1464, 1468 (1987), which had in turn interpreted a Fifth Circuit case as requiring that leave requests for protection under § 2024(d) must be reasonable. See Lee v. Pensacola, 634 F. 2d 886, 889 (1981). A panel of the Eleventh Circuit affirmed, with two judges agreeing with the District Court that guaranteeing reemployment after a 3-year tour of duty would be per se unreasonable, thereby putting King outside the protection of § 2024(d). 901 F. 2d 1068 (1990). Judge Roney concurred separately that King’s request was unreasonable, but dissented from the creation of a per se rule. Id., at 1072-1073.

Like the Fifth and Eleventh Circuits, the Third has en-grafted a reasonableness requirement onto § 2024(d). Eidukonis v. Southeastern Pennsylvania Transportation Authority, 873 F. 2d 688, 694 (1989). The Fourth Circuit, on the other hand, has declined to do so. Kolkhorst v. Tilghman, 897 F. 2d 1282, 1286 (1990), cert. pending, No. 89-1949. We granted certiorari to resolve this conflict, 498 U. S. 1081 (1991), and now reverse the judgment of the Eleventh Circuit.

II

We start with the text of § 2024(d), see Schreiber v. Burlington Northern, Inc., 472 U. S. 1, 5 (1985), which is free of any express conditions upon the provisions in contention here:

“[Any covered person] shall upon request be granted a leave of absence by such person’s employer for the period required to perform active duty for training or inactive duty training in the Armed Forces of the United States. Upon such employee’s release from a period of such . . . [duty]. .. such employee shall be permitted to return to such employee’s position with such seniority, status, pay, and vacation as such employee would have had if such employee had not been absent for such purposes.” 38 U. S. C. § 2024(d).

Thus, the Fourth Circuit could call the subsection’s guarantee of leave and reemployment “unequivocal and unqualified,” Kolkhorst, supra, at 1286, and the Eleventh Circuit itself observed that the subsection “does not address the ‘reasonableness’ of a reservist’s leave request.” Gulf States, supra, at 1468.

Although St. Vincent’s recognizes the importance of the statute’s freedom from provisos, see Brief for Respondent 9, it still argues that the text of subsection (d) favors its position. The hospital stresses that “leave” as used in subsection (d) is to be enjoyed by an “employee,” whose status as such implies that the employment relationship continues during the absence. Accordingly, employees protected under subsection (d) are “returned” to their positions after military service is over, while reservists protected by other subsections of § 2024 are “restored” to theirs, the difference in language attesting that the former remain employees, while the latter cease to be such during their time away. The hospital argues that the very notion of such a continuing relationship is incompatible with absences as lengthy as King’s, and finds that conclusion supported by the provisions speaking to the actual mechanics for resuming employment. While the reservists subject to other subsections must reapply for employment, those protected by subsection (d) are allowed, and indeed required, to “report for work at the beginning of the next regularly scheduled working period” after the tour of military duty expires. The hospital posits the impracticality of expecting an employee to report for work immediately after a 3-year absence, “to take his apron off the peg,” as the hospital’s counsel put it, and go back to work as if nothing had happened. It also makes much of the difficulties of filling responsible positions that would follow if their incumbents could be turned out so abruptly after serving for so long, upon the prior incumbent’s equally abrupt return.

To these arguments, and others like them that we do not set out at length, two replies are in order. We may grant that the congressionally mandated leave of absence can be an ungainly perquisite of military service, when the tour of duty lasts as long as King’s promises to do, and if we were free to tinker with the statutory scheme we could reasonably accord some significance to the burdens imposed on both employers and workers when long leaves of absence are the chosen means of guaranteeing eventual reemployment to military personnel.

But to grant all this is not to find equivocation in the statute’s silence, so as to render it susceptible to interpretive choice. On the contrary, the verbal distinctions underlying the hospital’s arguments become pallid in the light of a textual difference far more glaring than any of them: while, as noted, subsection (d) is utterly silent about any durational limit on the protection it provides, other subsections of §2024, protecting other classes of full-time service personnel, expressly limit the periods of their protection. Thus, § 2024(a) currently gives enlistees at least four years of reemployment protection, with the possibility of an extension to five years and even longer. Again, for example, § 2024(b)(1) extends protection to those entering active duty (except for “the purpose of determining physical fitness [or] for training”) for at least four years, with the possibility of a further extension beyond that. Given the examples of affirmative limitations on reemployment benefits conferred by neighboring provisions, we infer that the simplicity of subsection (d) was deliberate, consistent with a plain meaning to provide its benefit without conditions on length of service.

In so concluding we do nothing more, of course, than follow the cardinal rule that a statute is to be read as a whole, see Massachusetts v. Morash, 490 U. S. 107, 115 (1989), since the meaning of statutory language, plain or not, depends on context. See, e. g., Shell Oil Co. v. Iowa Dept. of Revenue, 488 U. S. 19, 26 (1988). “Words are not pebbles in alien juxtaposition; they have only a communal existence; and not only does the meaning of each interpenetrate the other, but all in their aggregate take their purport from the setting in which they are used . ...” NLRB v. Federbush Co., 121 F. 2d 954, 957 (CA2 1941) (L. Hand, J.) (quoted in Shell Oil, supra, at 25, n. 6).

St. Vincent’s itself embraces the same principle (though, we think, by way of misapplication) by countering the preceding textual analysis with a structural analysis of its own, in which it purports to discern a significant hierarchy of reemployment rights in the statutory scheme. As the hospital reads §2024 together with its companion provisions, the most generous protection goes to inductees, whose reemployment rights are unqualified by any reference to duration of service. Enlistees and those entering active duty in response to an order or call come next with protection so long as their tours of duty do not exceed five years; and at what the hospital claims to be “the bottom of the employment rights scheme,” Brief for Respondent 16, fall the reemployment rights protected by § 2024(d). Ibid. It is not unnatural, on this view, that the least protected veterans should be subject to an imprecise limit of reasonableness on the length of voluntary duty giving rise to their job protection.

But the hospital’s argument does not convince. While it invokes the significance of context, its conclusion rests on quite circular reasoning. There are, as we have just pointed out, differences of treatment among the various classes of service people protected by various provisions of the statute. But differences do not necessarily make hierarchies, and the differences revealed by the hospital’s examples do not point inexorably downward without assuming the point at issue, that the reservists subject to training duty within the meaning of subsection (d) really do get less protection than inductees, enlistees, and so on, covered by other provisions. Without such an assumption there are simply differences of treatment, to be respected by limiting protection where the text contains a limit and leaving textually unlimited protection just where the Congress apparently chose to leave it. Because the text of § 2024(d) places no limit on the length of a tour after which King may enforce his reemployment rights against St. Vincent’s, we hold it plain that no limit was implied.

III

The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

It is so ordered.

Justice Thomas took no part in the consideration or decision of this case.

       How and why petitioner’s nickname claimed a place in the caption of this case is a mystery of the record.

       The Alabama National Guard is a militia under state control except under certain constitutionally defined circumstances. See U. S. Const., Art. I, § 8, cl. 15. Because Congress nonetheless is authorized generally to “provide for organizing, arming, and disciplining” the Guard, cl. 16, federal law is at issue in this case.

       Department of Army Reg. 135-18, ch. 2, §11, 2-9. Length of periods of AD or FTD (1985).

       The AGR program was established by Congress in 1980. See Department of Defense Authorization Act, 1980, § 401(b), 93 Stat. 807.

       Section 2024(d) covers AGR participants. See Veterans’ Rehabilitation and Education Amendments of 1980, § 511(b), 94 Stat. 2207. Neither party contests the applicability of § 2024(d) to King’s leave request.

        Lee is binding precedent in the Eleventh Circuit, as it was decided on January 20,1981, before the Eleventh Circuit was carved out of the Fifth. See Bonner v. Prichard, 661 F. 2d 1206,1207 (CA111981) (en banc) (Fifth Circuit decisions handed down as of Sept. 30, 1981, adopted as Eleventh Circuit precedent).

       See also Lemmon v. County of Santa Cruz, 686 F. Supp. 797, 802 (ND Cal. 1988) (adopting reasonableness requirement set forth in Lee v. Pensacola, 634 F. 2d 886 (CA5 1981)); Bottger v. Doss Aeronautical Servs., Inc., 609 F. Supp. 683, 585 (MD Ala. 1985) (following Lee); Anthony v. Basic Am. Foods, Inc., 600 F. Supp. 352, 354-355 (ND Cal. 1984) (both parties accepting reasonableness test).

       Subsections (a), (b), (c), and (g) identify other classes of reservists, enlistees, and those called to active duty, and make applicable to those classes the reemployment protection offered inductees pursuant to 38 U. S. C. § 2021(a)(2)(A)(i), namely, “restor[ation]” to the formerly held position “or to a position of like seniority, status, and pay.”

       As a counterexample, St. Vincent’s might cite § 2024(g), providing reservists ordered to active duty for not more than 90 days with a guarantee of reemployment extending through their period of duty. Standing alone with subsection (d), this provision might suggest that a guarantee extending through the duration of a reservist’s tour of active duty must be express; but the examples of specific durational limitations described in the text above show that Congress knew how to provide limits on its benefits when that was the intent. Even if the express examples unsettled the significance of subsection (d)’s drafting, however, we would ultimately read the provision in King’s favor under the canon that provisions for benefits to members of the Armed Services are to be construed in the beneficiaries’ favor. Fishgold v. Sullivan Drydock & Repair Corp., 328 U. S. 275, 285 (1946). We will presume congressional understanding of such interpretive principles, e. g., McNary v. Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991) (“It is presumable that Congress legislates with knowledge of our basic rules of statutory construction”).

       See also United States v. Hartwell, 6 Wall. 385, 396 (1868) (in construing statute court should adopt that sense of words which best harmonizes with context and promotes policy and objectives of legislature); see generally 2A C. Sands, Sutherland on Statutory Construction § 46.05 (rev. 4th ed. 1984).

       See 38U.S.C. §2021.

       See 38 U. S. C. §§ 2024(a), 2024(b)(1). The basic limit here is four years, with an additional year of protection if the Government requests additional service.

       The hospital claims to find additional support for this declension in the legislative history of § 2024(d), relying heavily on excerpts from the House and Senate Reports on the 1960 bill that eventuated in the current statute. Brief for Respondent 17-18, and n. 31.

       “When we find the terms of a statute unambiguous, judicial inquiry is complete, except in rare and exceptional circumstances.” Rubin v. United States, 449 U. S. 424, 430 (1981) (internal quotation marks omitted). Such circumstances are not present here; as we indicate below, the hospital’s invocation of legislative history does not make its case.
      The hospital relies heavily on 1960 Senate and House Reports citing short-term leaves as covered by § 2024. See S. Rep. No. 1672,86th Cong., 2d Sess., 2; H. R. Rep. No. 1263, 86th Cong., 2d Sess., 6; see also Brief for Respondent 17, n. 31. While this history may demonstrate that in 1960 § 2024(d) applied to short leaves, the significance of this is surely blunted by Congress’ undoubted intention 20 years later to apply the subsection to long leaves when it brought AGR participants under § 2024(d). See Veterans’ Rehabilitation and Education Amendments of 1980, § 611(b), 94 Stat. 2207.
      The inference that Congress intended no such limits as the hospital espouses is buttressed by a joint House-Senate Conference Committee’s disapproval of a shift in the position taken by the Department of Labor on this issue. Before 1981 the Department took the position we adopt. See United States Department of Labor, Veterans’ Reemployment Rights Handbook 111 (1970). After Lee v. Pensacola, 634 F. 2d 886 (CA5 1981), the Department adopted the different view that § 2024(d) protection applied only to leaves of 90 days or less. See H. R. Rep. No. 97-782, p. 8 (1982). Subsequently, a joint House-Senate Conference Committee Report announced that the House and Senate Veterans’ Affairs Committees “d[id] not believe that the 90-day limit [was] well-founded either as legislative interpretation or application of the pertinent ease law.” 128 Cong. Rec. 25513 (1982). Coming as it did in the aftermath of Congress’ decision to place AGR participants under the coverage of § 2024(d), this statement is decidedly at odds with the hospital’s position, and confirms the conclusion that enactment of the AGR program was not intended to modify the ostensibly unconditional application of § 2024(d).


author: Per Curiam. Justice Scalia, Justice Stevens, Justice Kennedy,

text:
    HUNTER et al. v. BRYANT
    No. 90-1440.
    Decided December 16, 1991
   Per Curiam.

On May 3,1985, respondent James V. Bryant delivered two photocopies of a handwritten letter to two administrative offices at the University of Southern California. The rambling letter referred to a plot to assassinate President Ronald Reagan by “Mr Image,” who was described as “Communist white men within the 'National Council of Churches.’” The letter stated that “Mr Image wants to murder President Reagan on his up and coming trip to Germany,” that “Mr Image had conspired with a large number of U. S. officials in the plot to murder President Reagan” and others, and that “Mr Image (NCC) still plans on murdering the President on his trip to Germany in May, 1985.” See Bryant v. United States Treasury Department, Secret Service, 903 F. 2d 717, 724-727 (CA9 1990) (Bryant’s letter). President Reagan was traveling in Germany at the time.

A campus police sergeant telephoned the Secret Service, and agent Brian Hunter responded to the call. After reading the letter, agent Hunter interviewed university employees. One identified James Bryant as the man who had delivered the letter and reported that Bryant had “told her ‘[h]e should have been assassinated in Bonn.’” Another employee said that the man who delivered the letter made statements about “'bloody coups’” and “‘assassination,’” and said something about “ ‘across the throat’ ” while moving his hand horizontally across his throat to simulate a cutting action. Id., at 718-719.

Hunter and another Secret Service agent, Jeffrey Jordan, then visited a local address that appeared on the letter. Bryant came to the door and gave the agents permission to enter. He admitted writing and delivering the letter, but refused to identify “Mr. Image” and answered questions about “Mr. Image” in a rambling fashion. Bryant gave Hunter permission to search the apartment, and the agent found the original of the letter. While the search was underway, Jordan continued questioning Bryant, who refused to answer questions about his feelings toward the President or to state whether he intended to harm the President. Id., at 719.

Hunter and Jordan arrested Bryant for making threats against the President, in violation of 18 U. S. C. § 871(a). Bryant was arraigned and held without bond until May 17, 1985, when the criminal complaint was dismissed on the Government’s motion.

Bryant subsequently sued agents Hunter and Jordan, the United States Department of the Treasury, and the Director of the Secret Service, seeking recovery under the Federal Tort Claims Act and alleging that the agents had violated his rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments. See Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). The District Court dismissed all defendants other than agents Hunter and Jordan and all causes of action other than Bryant’s Fourth Amendment claims for arrest without probable cause and without a warrant. The court denied the agents’ motion for summary judgment on qualified immunity grounds.

On appeal, a Ninth Circuit panel held that the agents were entitled to qualified immunity for arresting Bryant without a warrant because, at that time, the warrant requirement was not clearly established for situations in which the ar-restee had consented to the agents’ entry into a residence. 903 F. 2d, at 723-724.

However, the panel divided on the question whether the agents were entitled to immunity on the claim that they had arrested Bryant without probable cause. The majority concluded that the agents had failed to sustain the burden of establishing qualified immunity because their reason for arresting Bryant — their belief that the “Mr. Image” plotting to kill the President in Bryant’s letter could be a pseudonym for Bryant — was not the most reasonable reading of Bryant’s letter:

“Even accepting the ‘alter ego’ theory that by warning what Mr. Image was going to do, Mr. Bryant was in fact communicating what he himself planned to do, the letter read in its entirety does not appear to make a threat against the president. Most of the letter does not even talk about President Reagan. A more reasonable interpretation of the letter might be that Bryant was trying to convince people of the danger Mr. Image and the conspiracy posed rather than that Bryant was speaking through Mr. Image.” Id., at 722 (emphasis added).

Our cases establish that qualified immunity shields agents Hunter and Jordan from suit for damages if “a reasonable officer could have believed [Bryant’s arrest] to be lawful, in light of clearly established law and the information the [arresting] officers possessed.” Anderson v. Creighton, 483 U. S. 635, 641 (1987). Even law enforcement officials who “reasonably but mistakenly conclude that probable cause is present” are entitled to immunity. Ibid. Moreover, because “[t]he entitlement is an immunity from suit rather than a mere defense to liability,” Mitchell v. Forsyth, 472 U. S. 511, 526 (1985), we repeatedly have stressed the importance of resolving immunity questions at the earliest possible stage in litigation. See Harlow v. Fitzgerald, 457 U. S. 800, 818 (1982); Davis v. Scherer, 468 U. S. 183, 195 (1984); Mitchell, supra, at 526; Malley v. Briggs, 475 U. S. 335, 341 (1986); Anderson, supra, at 646, n. 6.

The decision of the Ninth Circuit ignores the import of these decisions. The Court of Appeals’ confusion is evident from its statement that “[wjhether a reasonable officer could have believed he had probable cause is a question for the trier of fact, and summary judgment' . . . based on lack of probable cause is proper only if there is only one reasonable conclusion a jury could reach.” 903 F. 2d, at 721. This statement of law is wrong for two reasons. First, it routinely places the question of immunity in the hands of the jury. Immunity ordinarily should be decided by the court long before trial. See Mitchell, supra, at 527-529. Second, the court should ask whether the agents acted reasonably under settled law in the circumstances, not whether another reasonable, or more reasonable, interpretation of the events can be constructed five years after the fact.

Under settled law, Secret Service Agents Hunter and Jordan are entitled to immunity if a reasonable officer could have believed that probable cause existed to arrest Bryant. Probable cause existed if “at the moment the arrest was made ... the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing” that Bryant had violated 18 U. S. C. § 871. Beck v. Ohio, 379 U. S. 89, 91 (1964).

When Agents Hunter and Jordan arrested Bryant, they possessed trustworthy information that Bryant had written a letter containing references to an assassination scheme directed against the President, that Bryant was cognizant of the President’s whereabouts, that Bryant had made an oral statement that “‘[h]e should have been assassinated in Bonn,’ ” 903 F. 2d, at 719, and that Bryant refused to answer questions about whether he intended to harm the President. On the basis of this information, a Magistrate ordered Bryant to be held without bond.

These undisputed facts establish that the Secret Service agents are entitled to qualified immunity. Even if we assumed, arguendo, that they (and the magistrate) erred in concluding that probable cause existed to arrest Bryant, the agents nevertheless would be entitled to qualified immunity because their decision was reasonable, even if mistaken. Anderson, supra, at 641.

The qualified immunity standard “gives ample room for mistaken judgments” by protecting “all but the plainly incompetent or those who knowingly violate the law.” Malley, supra, at 343, 341. This accommodation for reasonable error exists because “officials should not err always on the side of caution” because they fear being sued. Davis, supra, at 196. Our national experience has taught that this principle is nowhere more important than when the specter of Presidential assassination is raised.

The petition for a writ of certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice Thomas took no part in the consideration or decision of this case.

Justice Scalia,

concurring in the judgment.

In my view the Ninth Circuit’s opinion purported to apply the standard for summary judgment that today’s opinion demands. Its error was in finding, on the facts before it, that the standard was not met. Since I think it worthwhile to establish that this Court will not let such a mistake stand with respect to those who guard the life of the President, I concur in the summary reversal.

Justice Stevens,

dissenting.

The question in this case is not whether a reasonable officer could have believed that respondent posed a threat to the life of the President. Those “who guard the life of the President,” ante this page (Scalia, J., concurring in judgment), properly rely on the slightest bits of evidence — nothing more than hunches or suspicion — in taking precautions to avoid the ever-present danger of assassination. Mere suspicion is obviously a sufficient justification for a host of protective measures such as, for example, careful surveillance of a person like respondent. The question that is presented, however, is whether a reasonable trained law enforcement officer could have concluded that the evidence available to petitioners at the time they arrested respondent constituted probable cause to believe that he had committed the crime of threatening the life of President Reagan.

The evidence on which the officers relied to support their conclusion that probable cause existed is summarized in two affidavits which they filed in support of their motion for summary judgment. That evidence includes three relevant components: (1) a rambling, confusing letter written by respondent contained statements indicating that a “Mr Image” intended to assassinate the President while he was in Germany; (2) the officers “believed that the use of the term Mr. Image may have been a pseudonym for [respondent] Bryant and that Bryant was writing in the third person,” App. to Pet. for Cert. 48a, 54a; and (3) when respondent delivered a copy of the letter to Veronica Tincher in the budget office of the University of Southern California, he “said something about ‘across the throat/ while simultaneously moving his hand horizontally across his throat to simulate a cutting action,” id., at 43a.

The affidavits explained that in addition to the above facts, the affiants were “concerned that Bryant might pose a threat to the President’s well-being.” Id., at 48a, 54a. It is also noteworthy that when the officers visited Bryant in his apartment, he allowed them to enter and voluntarily consented to a search for weapons in plain view, and then to a second search of the entire residence. That search resulted in nothing more than the discovery of the original of the letter.

The letter is the key piece of evidence supposedly justifying a finding that the officers reasonably believed that Bryant had threatened the life of the President. Bryant freely admitted to writing the letter, and the letter does refer to, among other things, a scheme to assassinate President Reagan. The letter does not, however, state that it is Bryant who intends to assassinate the President. Rather, the letter warns that “Mr Image” intends to harm the President. Nor does the letter leave the identity of “Mr Image” in doubt. In its first sentence, the letter identifies the term parenthetically: “Mr ‘Image’ (Communist white men within the ‘National Council of Churches).’” Bryant v. United States Treasury Department, Secret Service, 903 F. 2d 717, 724 (CA9 1990) (reprinting Bryant’s letter). The letter then proceeds to explain the derivation of the term: “The name ‘Image to the Beast’ is a biblical name given to and identifys [sic] the National Council of Churches as a body ... though the NCC is composed largely of women, it is men who really control it. So it is appropriate to respectfully address the NCC as Mr IMAGE!” Ibid. A postscript to the letter further specifies the Biblical origin of the term and its identification with the National Council of Churches: “Mr Image «-(NCC) is scard [sic] to death over the posiability [sic] of being exposed by the prophecy of Rev. 13:11-17 & Rev. 14:9-11.” Id., at 727. At other places in the letter, as well, “Mr Image” is identified with the National Council of Churches through parenthetical references.

Bryant’s letter advances a conspiracy theory accusing the National Council of Churches of spreading communism and scheming to assassinate the President. Such a theory is of course absurd, but this absurdity does not mean that Bryant was threatening to harm the President. A vast gap separates the conclusion that a letter warning of an assassination threat is preposterous or delusional and the conclusion that the letter, itself, constitutes a threat by the author. Even if a delusional warning may serve to identify the author as mentally unstable and justify appropriate surveillance of his activities, such legitimate concern does not transform a delusional warning into a threat. As I suggested at the outset, the confusing set of facts may well have justified a trained officer in coming to the conclusion that a mentally unstable person might pose a threat to the President’s well-being. No matter how reasonable such an officer’s belief may have been, that kind of suspicion is not a substitute for a reasonable determination that the evidence established probable cause to arrest.

The District Court denied the petitioners’ motion for summary judgment seeking dismissal on the ground of qualified immunity because it decided that further factfinding was necessary. On such a motion, the court was of course required to resolve any disputed question of fact against the moving parties. In my opinion the Court of Appeals correctly stated the governing standards when it wrote:

“Qualified immunity is an affirmative defense for which the government official bears the burden of proof. Harlow v. Fitzgerald, [457 U. S. 800, 815 (1982)], Benigni v. City of Hemet, 853 F. 2d 1519, 1525 (9th Cir. 1988). As with all summary judgment motions, the evidence should be viewed in the light most favorable to Bryant as the nonmoving party; to prevail on their motion for summary judgment, the defendants must show that they were reasonable in their belief that they had probable cause. Bryant, however, bears the burden of proving that the right which the defendants allegedly violated was clearly established at the time of their conduct.. . .
“. . . In order for a secret service agent reasonably to have believed he had cause to arrest Bryant, the agent must have been reasonable in his belief that Bryant’s words and the context in which he delivered them were a serious threat against the president. Watts v. United States, [394 U. S. 705 (1969) (per curiam)].
“Whether a reasonable officer could have believed he had probable cause is a question for the trier of fact, and summary judgment or a directed verdict in a § 1983 action based on lack of probable cause is proper only if there is only one reasonable conclusion a jury could reach. Kennedy v. L. A. Police Department, 887 F. 2d 920, 924 (9th Cir. 1989), McKenzie v. Lamb, 738 F. 2d 1005, 1008 (9th Cir. 1984). Because qualified immunity protects government officials from suit as well as from liability, it is essential that qualified immunity claims be resolved at the earliest possible stage of litigation. Mitchell [v. Forsyth, 472 U. S. 511, 526 (1985)]. This necessarily expands the factfinding role that must be played by the district court judge. In some cases, district courts will be able to establish entitlement to qualified immunity before trial and, sometimes, even before discovery.... In some cases, however, further development of the record will be necessary. In this case it was proper for the court to require further development of the facts to determine whether the secret service reasonably could have interpreted the letter as violating § 871.” 903 F. 2d, at 720-721.

Like Justice Scalia, I am satisfied that the Court of Appeals applied the correct legal standard when it affirmed the District Court’s refusal to grant summary judgment in favor of petitioners. When the Court of Appeals opinion is read in its entirety, that conclusion is inescapable. Unlike Justice Scalia, however, I am also satisfied that when the proper legal standards are applied to this record, with the evidence examined in the light most favorable to the nonmoving party, petitioners have not yet established that a reasonable officer could have concluded that he had sufficient evidence to support a finding of probable cause at the time of respondent’s arrest. I also think it unwise for this Court, on the basis of its de novo review of a question of fact, to reject a determination on which both the District Court and the Court of Appeals agreed.

Accordingly, I respectfully dissent.

Justice Kennedy,

dissenting.

Petitioners in this case are agents of the Secret Service. Among the questions presented are the proper interpretation of 18 U. S. C. § 871(a), which prohibits mail threats against the President, and the proper standard for summary judgment on grounds of qualified immunity. Whether implied or expressed, our resolution of these questions will be parsed by the Service and by later courts. The importance of these questions suggests that we should not dispose of them in summary fashion.

For the reasons stated in today’s per curiam opinion and in the dissent by Judge Trott in the Court of Appeals, I must agree that the holding of the Court of Appeals is open to serious question. The majority opinion of that court seems not to have considered all of the facts on which the agents relied, in particular the statements made by Bryant and his responses (or nonresponses) to the agents’ questions. This calls in question its determination that qualified immunity has not been established on summary judgment.

To reverse in this case, however, the Court considers an issue on which some doubt has been expressed, which is whether the Court of Appeals applied the correct legal standard to resolve the qualified immunity issue on summary judgment. Two Members of the Court disagree with the statement in the per curiam opinion that the Court of Appeals misstated the law. See ante, at 227; ante, at 229 (Scalia, J., concurring in judgment); ante, at 234 (Stevens, J., dissenting). Given this disagreement, as well as the precedential weight that later courts will accord to all of the questions presented in the case and addressed here in express terms or by clear implication, the case does not lend itself to summary disposition. I would set the case for full briefing and oral argument.

For these reasons, I dissent from the judgment of summary reversal in this case.

       Title 18 U. S. C. § 871(a) provides:
      “Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined not more than $1,000 or imprisoned not more than five years, or both.”

       In the original, “(NCC)” is written above the word “Image,” and the connecting arrow runs downward. Defendants’ Memorandum of Points and Authorities in Support of Motion for Summary Judgment in No. CV 86-3134 (CD Cal.), p. 61. The arrow is omitted in the copy of the letter reprinted in the Court of Appeals’ opinion.

       The National Council of Churches has at times come under attack for allegedly supporting subversive activity. In 1983, for example, such charges were leveled against the National Council of Churches in a segment of the television program “60 Minutes” and in an article appearing in the Reader’s Digest, Isaac, Do You Know Where Your Church Offerings Go?, Reader’s Digest, Jan. 1983, pp. 120-126. The president of the National Council of Churches responded to media reports by stating: “ ‘[T]he National Council of Churches is not a worldwide socialist conspiracy. [It] does not supply arms to communists, revolutionaries, or anyone else. The National Council of Churches does not believe in the violent overthrow of any government.’” Christian Science Monitor, May 6, 1983, p. 3 (reporting speech of Bishop James Armstrong, president of the National Council of Churches). For reports of criticism of the National Council of Churches closer in time to the incident at issue here, see, e. g., Los Angeles Times, Apr. 27, 1986, pt. 2, p. 6, col. 1 (reporting statement by Peter Reddaway of London School of Economics that “ ‘[w]ittingly or unwittingly, the NCC is deeply involved in concealing and distorting the truth about the Soviet Union . .id., Apr. 26, 1986, pt. 6, p. 1, col. 2 (reporting statement by associate professor of history at Seattle Pacific University that the National Council of Churches “has done a disservice to Christians in the Soviet Union by ‘buying the Soviet line’ as handed to them by official Soviet church leaders ...”).