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SUPREME COURT OF THE UNITED STATES
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No. 93-1525
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MICHAEL A. LEBRON, PETITIONER v. NATIONAL
RAILROAD PASSENGER CORPORATION
on writ of certiorari to the united states court
of appeals for the second circuit
[February 21, 1995]

  Justice O'Connor, dissenting.
  The Court holds that Amtrak is a Government entity
and therefore all of its actions are subject to constitu-
tional challenge.  Lebron, however, expressly disavowed
this argument below, and consideration of this broad and
unexpected question is precluded because it was not
presented in the petition for certiorari.  The question on
which we granted certiorari is narrower: Whether the
alleged suppression of Lebron's speech by Amtrak, as a
concededly private entity, should be imputed to the
Government.  Because Amtrak's decision to reject
Lebron's billboard proposal was a matter of private
business judgment and not of Government coercion, I
would affirm the judgment below.

                            I
  This Court's Rule 14.1(a) provides: -Only the questions
set forth in the petition, or fairly included therein, will
be considered by the Court.-  While -[t]he statement of
any question presented will be deemed to comprise every
subsidiary question,- ibid., questions that are merely
-related- or -complementary- to the question presented
are not -fairly included therein.-  Yee v. Escondido, 503
U. S. ___ (1992) (slip op., at 15-16).  In Yee, we held
that a regulatory taking argument, while subsidiary to
the umbrella question whether a taking had occurred,
was only complementary to the physical taking inquiry
set forth in the petition and thus was barred under Rule
14.1(a).  See id., at ___ (slip op., at 14).  Here, state
action is the umbrella claim.  Subsidiary to that claim,
but complementary to each other, are two distinct
questions: whether Amtrak is a Government entity, and
whether Amtrak's conduct as a private actor is neverthe-
less attributable to the Government.
  We granted certiorari on the following question, set
forth in the petition:
      -Whether the court of appeals erred in holding
that Amtrak's asserted policy barring the display of
political advertising messages in Pennsylvania
Station, New York, was not state action, where:
      (a)   the United States created Amtrak, endowed
it with governmental powers, owns all its voting
stock, and appoints all the members of its Board;
      (b)   the United States-appointed Board approved
the advertising policy challenged here;
      (c)   the United States keeps Amtrak afloat every
year by subsidizing its losses; and
      (d)   Pennsylvania Station was purchased for
Amtrak by the United States and is shared with
several other governmental entities.-  Pet. for Cert.
i.
The question asks whether the challenged policy -was
not state action- and therefore may, at first blush,
appear to present the umbrella inquiry.  Yee suggests
otherwise.  The petition there recited two decisions by
the Courts of Appeals and asked: -Was it error for the
state appellate court to disregard the rulings and hold
that there was no taking under the fifth and fourteenth
amendments?-  Instead of focusing on whether -there
was no taking,- we read the question as a whole.  Since
the decisions by the Courts of Appeals and the lower
court opinion involved only physical takings, we con-
cluded, -Fairly construed, then, petitioners' question
presented is the equivalent of the question, `Did the
court below err in finding no physical taking?'-  503
U. S., at ___ (slip op., at 15).
  Just so here.  The question asks whether the lower
court erred and thus directs our attention to the deci-
sions below.  The District Court, in its thorough order,
explicitly noted Lebron's theory of the case: -Plaintiff
does not contend that Amtrak is a governmental agency.
What plaintiff contends is that the federal government
is sufficiently intertwined in Amtrak's operations and
authority that the particular actions at issue must be
deemed governmental action.-  811 F. Supp. 993, 999
(SDNY 1993).  Before the Court of Appeals, in order to
distinguish a long line of cases which held that Amtrak
is not a Government agency, Lebron stated: -Since
Lebron does not contend that Amtrak is a governmental
entity per se, but rather is so interrelated to state
entities that it should be treated as a state actor here,
these cases are inapposite.-  Brief for Michael A. Lebron
in No. 93-7127 (CA2), p. 30, n. 39.
  The Court of Appeals, like the District Court, substan-
tively discussed only the second question that Lebron
argues here-whether Amtrak's conduct in this case
implicates -the presence of government action in the
activities of private entities.-  12 F. 3d 388, 390 (CA2
1993).  To introduce its analysis, the Court of Appeals
did state that -[t]he Rail Passenger Service Act of 1970
. . . created Amtrak as a private, for-profit corporation
under the District of Columbia Business Corporation
Act,- ibid., relying on Congress' characterization of the
corporation in 45 U. S. C. 541.  In so asserting, the
Court of Appeals did not -`pas[s] upon'- the question
such that it is now a proper basis for reversal, ante, at
4, but rather merely identified the question that the
court had to address and focused the inquiry on the
precise argument presented by Lebron.  This observation
by the Court of Appeals is much like-indeed, much less
extensive than-our discussion of Amtrak's status as a
private corporation in National Railroad Passenger
Corporation v. Achison, T. & S. F. R. Co., 470 U. S. 451,
453-456 (1985).  I agree with the Court that Achison
does not bind us, ante, at 19-20, but by the same token
I do not see how the court below could be said to have
addressed the issue.  A passing observation could not
constitute binding precedent; so too it could not serve as
the basis for reversal.
  The question set forth in the petition focused on the
specific action by Amtrak, not on the general nature of
the corporation as a private or public entity.  Lebron
asked whether -Amtrak's asserted policy barring the
display of political advertising messages in Pennsylvania
Station, New York, was not state action.-  The list that
follows this question, while partially concerning Amtrak's
nature as an entity, went to support the thrust of the
query, which is whether these enumerated attributes
render Amtrak's advertising policy state action.  Lebron's
emphasis on the specific action challenged is the crucial
difference between his alternative arguments for state
action.  The first inquiry-whether Amtrak is a Govern-
ment entity-focuses on whether Amtrak is so controlled
by the Government that it should be treated as a
Government agency, and all of its decisions considered
state action.  The second inquiry takes Lebron at his
word that Amtrak is not a Government entity and
instead focuses on the State's influence on particular
actions by Amtrak as a private actor.
  Fairly construed, the question presented is whether
the Court of Appeals erred in holding that the advertis-
ing policy of Amtrak, as a private entity, is not attribut-
able to the Federal Government despite the corporation's
links thereto.  This question is closely related and
complementary to, but certainly not inclusive of, the
question answered by the Court today, which is whether
those links render Amtrak the functional equivalent of
a Government agency.  In my view, the latter question
is barred by Rule 14.1(a).
  Relying on United States Nat. Bank of Ore. v. Independ-
ent Ins. Agents of America, Inc., 508 U. S. ___ (1993), the
Court argues that it properly addresses whether Amtrak
is a Government entity because that inquiry is -prior to
the clearly presented question,- namely, whether
Amtrak's decision is attributable to the Government.
Ante, at 7.  Independent Insurance Agents, however, held
only that the Court of Appeals had authority to consider
a waived claim sua sponte and did not abuse its discre-
tion in doing so.  That is quite different from the
purpose for which the Court now marshals the case,
which is to justify its consideration of a waived question
in the first instance.  As explained below, I do not
question the Court's authority, only its prudence.  In
any event, the dispute in Independent Insurance Agents
centered on the interpretation of a statute that may not
have existed, and, as the Court recognizes, ante, at 9, n.
3, the decision simply applied the traditional principle
that -[t]here can be no estoppel in the way of ascertain-
ing the existence of a law.-  Town of South Ottawa v.
Perkins, 94 U. S. 260, 267 (1877).  Here, one need not
assume the existence of any predicate legal rule to
accept Lebron's word that Amtrak is a private entity.
  The mere fact that one question must be answered
before another does not insulate the former from Rule
14.1(a) and other waiver rules.  In Stone v. Powell, 428
U. S. 465 (1976), we held that Fourth Amendment
claims are not ordinarily cognizable in federal habeas
proceedings and distinguished several cases by noting
that -the issue of the substantive scope of the writ was
not presented in the petition[s] for certiorari.-  Id., at
481, n. 15.  We thus recognized that those decisions
properly avoided the question of cognizability, which
question, of course, is logically anterior to the merits of
the Fourth Amendment claims presented.  In Steagald
v. United States, 451 U. S. 204, 211 (1981), we held that
the Government had conceded that the petitioner had a
Fourth Amendment interest in the searched home, an
inquiry that precedes the question that was preserved,
whether the search was reasonable.  In Kamen v.
Kemper Financial Services, Inc., 500 U. S. 90, 97, n. 4
(1991), because the question was neither litigated below
nor included in the petition, we assumed the existence
of a cause of action under 20(a) of the Investment
Company Act of 1940 before addressing the requirements
of such an action.  See also Burks v. Lasker, 441 U. S.
471, 476 (1979) (assuming same).  Finally, in McCormick
v. United States, 500 U. S. 257 (1991), the Court held
that a state legislator did not violate the anti-extortion
Hobbs Act, 18 U. S. C. 1951, by accepting campaign
contributions without an explicit exchange of improper
promises.  The Court reached this question only after
declining to consider whether the Act applies to local
officials at all, because that question was neither argued
below nor included in the petition for certiorari.
McCormick, 500 U. S., at 268, n. 6; see also id., at 280
(Scalia, J., concurring) (accepting the assumption,
because the argument was waived, that the Hobbs Act
is a -federal `payment for official action' statute- even
though -I think it well to bear in mind that the statute
may not exist-).
  The Court does not take issue with these cases but
argues further that, because the question whether
Amtrak is a government entity is -dependent upon many
of the same factual inquiries [as the clearly presented
question], refusing to regard it as embraced within the
petition may force us to assume what the facts will
show to be ridiculous, a risk which ought to be avoided.-
Ante, at 7.  A certain circularity inheres in this logic,
because the Court must first answer the omitted
question in order to determine whether its answer turns
on -the same factual inquiries- as the clearly presented
question.  As for the facts, the record is shaped by the
parties' arguments below.  Perhaps serendipity has given
the Court a factual record adequate to decide a question
other than that advanced below, but there is no guaran-
tee of such convergence.  It is rather unfair to hold a
party to a record that it may have developed differently
in response to a different theory of the case.  It is this
risk of unfairness, rather than the fear of seeming
-ridiculous,- that we should avoid.
  Rule 14.1(a), of course, imposes only a prudential
limitation, but one that we disregard -only in the most
exceptional cases.-  Stone v. Powell, 428 U. S., at 481,
n. 15; see also United States v. Mendenhall, 446 U. S.
544, 551, n. 5 (1980).  This is not one of them.  As
noted before, not only did Lebron disavow the argument
that Amtrak is a Government entity below, he did so in
order to distinguish troublesome cases.  Lebron's post-
petition attempt to resuscitate the claim that he himself
put to rest is precisely the kind of bait-and-switch
strategy that waiver rules, prudential or otherwise, are
supposed to protect against.  In Steagald, 451 U. S., at
211, for example, we stated unequivocally that -the
Government, through its assertions, concessions, and
acquiescence, has lost its right to challenge petitioner's
assertion that he possessed a legitimate expectation of
privacy in the searched home.-  I see no difference here.
  The Rule's prudential limitation on our power of
review serves two important purposes, both of which the
Court disserves by deciding that Amtrak is a Govern-
ment entity.  First, the Rule provides notice and enables
the respondent to sharpen its arguments in opposition to
certiorari.  -By forcing the petitioner to choose his
question at the outset, Rule 14.1(a) relieves the respond-
ent of the expense of unnecessary litigation on the
merits and the burden of opposing certiorari on unpre-
sented questions.-  Yee, 503 U. S., at ___ (slip op., at
14).  Lebron argues that Amtrak has waived its Rule
14.1(a) argument by failing to object in the brief in
opposition to certiorari.  But that is exactly the point:
The question set forth did not fairly include an argu-
ment that Amtrak is a Government agency, and, indeed,
the petition was devoted to whether Amtrak's private
decision should be imputed to the State.  Even at pages
16-18, the petition did not -fairly embrace[] the argu-
ment that Lebron now advances,- ante, at 5, but rather
argued that the composition of Amtrak's board -renders
an otherwise private entity a state actor,- Pet. for Cert.
16 (emphasis added)-thus specifically repeating the
concession he now wishes to withdraw.  Amtrak could
not respond to a point not argued and did not waive an
argument that was not at issue.  Not until the merits
brief did Amtrak have notice that Lebron would contra-
dict his persistent assertion that the corporation was a
private entity.
  Second, the Rule assists the management of our cases.
-Rule 14.1(a) forces the parties to focus on the questions
the Court has viewed as particularly important, thus
enabling us to make efficient use of our resources.-  Yee,
503 U. S., at ___ (slip op., at 15).  We normally grant
only petitions that present an important question of law
on which the lower courts are in conflict.  Here, the
lower courts have generally held that Amtrak is not a
Government entity, see, e. g., Anderson v. National
Railroad Passenger Corporation, 754 F. 2d 202, 204
(CA7 1985); Ehm v. National Railroad Passenger
Corporation, 732 F. 2d 1250, 1255 (CA5), cert. denied,
469 U. S. 982 (1984), and none of our cases suggests
otherwise.  Even where the lower courts are in clear
conflict, we often defer consideration of novel questions
of law to permit further development.  Despite the
prevalence of publicly owned corporations, whether they
are Government agencies is a question seldom answered,
and then only for limited purposes.  See Cherry Cotton
Mills v. United States, 327 U. S. 536, 539 (1946);
National Railroad Passenger Corporation v. Atchison, T.
& S. F. R. Co., 470 U. S., at 471.  Answering this ques-
tion today merely opens the back door to premature
adjudication of similarly broad and novel theories in the
future.
  Weeding out such endeavors, Rule 14.1(a), like other
waiver rules, rests firmly upon a limited view of our
judicial power.  See, e. g., Carducci v. Regan, 714 F. 2d
171, 177 (CADC 1983) (Scalia, J.) (-The premise of our
adversarial system is that appellate courts do not sit as
self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and
argued by the parties before them-).  -The doctrine of
judicial restraint teaches us that patience in the judicial
resolution of conflicts may sometimes produce the most
desirable result.-  Stevens, Some Thoughts on Judicial
Restraint, 66 Judicature 177, 183 (1982).  Whether the
result of today's decision is desirable I do not decide.
But I think it clear that the Court has exhibited little
patience in reaching that result.

                           II
  Accepting Lebron's concession that Amtrak is a private
entity, I must -traverse th[e] difficult terrain,- ante, at
3, that the Court sees fit to avoid, and answer the
question that is properly presented to us: whether
Amtrak's decision to ban Lebron's speech, although made
by a concededly private entity, is nevertheless attribut-
able to the Government and therefore considered state
action for constitutional purposes.  Reflecting the
discontinuity that marks the law in this area, we have
variously characterized the inquiry as whether -there is
a sufficiently close nexus between the State and the
challenged action,- Jackson v. Metropolitan Edison Co.,
419 U. S. 345, 351 (1974); whether the state, by encour-
aging the challenged conduct, could be thought -responsi-
ble for those actions,- Blum v. Yaretsky, 457 U. S. 991,
1005 (1982); and whether -the alleged infringement of
federal rights [is] `fairly attributable to the State,'-
Rendell-Baker v. Kohn, 457 U. S. 830, 838 (1982),
quoting Lugar v. Edmonson Oil Co., 457 U. S. 922, 937
(1982).  Whatever the semantic formulation, I remain of
the view that the conduct of a private actor is not
subject to constitutional challenge if such conduct is
-fundamentally a matter of private choice and not state
action.-  Edmonson v. Leesville Concrete Co., 500 U. S.
614, 632 (1991) (O'Connor, J., dissenting).
  Lebron relies heavily on Burton v. Wilmington Parking
Authority, 365 U. S. 715 (1961).  There, the Court
perceived a symbiotic relationship between a racially
segregated restaurant and a state agency from which the
restaurant leased public space.  Noting that the State
stood to profit from the discrimination, the Court held
that the Government had -so far insinuated itself into
a position of interdependence with- the private restau-
rant that it was in effect -a joint participant in the chal-
lenged activity.-  Id., at 725.  Focusing on this language,
Lebron argues that various features of Amtrak's struc-
ture and management-its statutory genesis, the heavy
reliance on federal subsidies, and a board appointed by
the President-places it in a symbiotic relationship with
the Government such that the decision to ban Lebron's
speech should be imputed to the State.
  Our decision in Burton, however, was quite narrow.
We recognized -the limits of our inquiry- and empha-
sized that our decision depended on the -peculiar facts
[and] circumstances present.-  Id., at 726.  We have
since noted that Burton limited its -actual holding to
lessees of public property,- Jackson v. Metropolitan
Edison Co., 419 U. S., at 358, and our recent decisions
in this area have led commentators to doubt its continu-
ing vitality, see, e. g., L. Tribe, American Constitutional
Law 18-3, p. 1701, n. 13 (2d ed. 1988) (-The only
surviving explanation of the result in Burton may be
that found in Justice Stewart's concurrence-).
  In Jackson, we held that a private utility's termination
of service to a customer is not subject to due process
challenge, even though the termination was made
pursuant to a state law.  In doing so, we made clear
that the question turns on whether the challenged
conduct results from private choice: -Respondent's
exercise of the choice allowed by state law where the
initiative comes from it and not from the State, does
not make its action in doing so `state action' for the
purposes of the Fourteenth Amendment.-  419 U. S., at
357 (footnote omitted).  The rule applies even where the
private entity makes its decision in an environment
heavily regulated by the Government.  Rendell-Baker,
supra, involved a private school for troubled students
who were transferred there by authority of a state law,
and for whose education the state paid the school.
Public funds comprised 90% to 99% of the school budget.
The school fired petitioners, and a state grievance board
reviewed that personnel action.  Despite the school's
pervasive ties to the State, we held that the discharge
decisions were not subject to constitutional challenge
because those actions -were not compelled or even
influenced by any state regulation.-  Id., at 841.  We
noted that -in contrast to the extensive regulation of the
school generally, the various regulators showed relatively
little interest in the school's personnel matters.-  Ibid.
Likewise, in Blum v. Yaretsky, supra, we held that the
decisions of a regulated hospital to discharge its patients
were not subject to constitutional challenge.  Although
various Medicaid regulations and benefit adjustment
procedures may have encouraged the hospital's decisions
to discharge its patients early, we held that the State
was not -responsible for those actions- because such
actions -ultimately turn on medical judgments made by
private parties according to professional standards that
are not established by the State.-  Id., at 1005, 1008.
See also San Francisco Arts & Athletics, Inc. v. United
States Olympic Comm., 483 U. S. 522, 547 (1987)
(-There is no evidence that the Federal Government
coerced or encouraged the USOC in the exercise of its
right [to deny use of its copyright]-).
  These cases differ markedly from the -interdepend-
ence- or -joint participation- analysis of Burton and
stand for the principle that, unless the Government
affirmatively influenced or coerced the private party to
undertake the challenged action, such conduct is not
state action for constitutional purposes.  Edmonson v.
Leesville Concrete Co., supra, is not to the contrary.  In
that case, the Court held that a private attorney's
exercise of a peremptory challenge is attributable to the
Government and therefore subject to constitutional
inquiry.  Although the opinion cited Burton, see 500
U. S., at 621, 624, it emphasized that a private party
exercising a peremptory challenge enjoys the -overt,
significant assistance of the court,- id., at 624.  The
decision therefore is an application of Shelley v.
Kraemer, 334 U. S. 1, 19 (1948), which focused on the
use of the State's coercive power, through its courts, to
effect the litigant's allegedly unconstitutional choice.
Moreover, Edmonson stressed that a litigant exercising
a peremptory challenge performs a -traditional function
of government,- 500 U. S., at 624, a theory of state
action established by Marsh v. Alabama, 326 U. S. 501
(1946), that is independent from Burton and not relevant
to this case.
  Relying thus on Shelley and Marsh, Edmonson did not
necessarily extend the -interdependence- rationale of
Burton beyond the limited facts of that case.  Given the
pervasive role of Government in our society, a test of
state action predicated upon public and private -interde-
pendence- sweeps much too broadly and would subject
to constitutional challenge the most pedestrian of
everyday activities, a problem that the Court recognized
in Burton itself, see 365 U. S., at 725-726.  A more
refined inquiry is that established by Jackson, Rendell-
Baker, Blum, and San Francisco Arts & Athletics: The
conduct of a private entity is not subject to constitution-
al scrutiny if the challenged action results from the
exercise of private choice and not from state influence or
coercion.
  Applying this principle to the facts before us, I see no
basis to impute to the Government Amtrak's decision to
disapprove  Lebron's advertisement.  Although a number
of factors indicate the Government's pervasive influence
in Amtrak's management and operation, none suggest
that the Government had any effect on Amtrak's
decision to turn down Lebron's proposal.  The advertis-
ing policy that allegedly violates the First Amendment
originated with a predecessor to Amtrak, the wholly
private Pennsylvania Railroad Company.  A 1967 lease
by that company, for example, prohibited -any advertise-
ment which in the judgement of Licensor is or might be
deemed to be slanderous, libelous, unlawful, immoral,
[or] offensive to good taste . . . .-  App. 326, -19.
Amtrak simply continued this policy after it took over.
The specific decision to disapprove Lebron's advertising
was made by Amtrak's Vice President of Real Estate
and Operations Development, who, as a corporate officer,
was neither appointed by the President nor directed by
the President-appointed board to disapprove Lebron's
proposal.
  Lebron nevertheless contends that the board, through
its approval of the advertising policy, controlled the
adverse action against him.  This contention rests on the
faulty premise that Amtrak's directors are state actors
simply because they were appointed by the President; it
assumes that the board members sit as public officials
and not as business directors, thus begging the question
whether Amtrak is a Government agency or a private
entity.  In any event, even accepting Lebron's premise
that the board's approval has constitutional significance,
the factual record belies his contention.  The particular
lease which permitted Amtrak to disallow Lebron's
billboard was neither reviewed nor approved directly by
the board.  In fact, minutes of meetings dating back to
1985 showed that the board approved only one contract
between Amtrak and Transportation Displays, Incorpo-
rated, the billboard leasing company that served as
Amtrak's agent, and even then it is not clear whether
the board approved the contract or merely delegated
authority to execute the licensing agreement.  App. 402.
In short, nothing in this case suggests that the Govern-
ment controlled, coerced, or even influenced Amtrak's
decision, made pursuant to corporate policy and private
business judgment, to disapprove the advertisement
proposed by Lebron.
  Presented with this question, the Court of Appeals
properly applied our precedents and did not impute
Amtrak's decision to the Government.  I would affirm on
this basis and not reverse the Court of Appeals based on
a theory that is foreign to this case.  Respectfully, I
dissent.