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NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
LEBRON v. NATIONAL RAILROAD PASSENGER
CORPORATION
certiorari to the united states court of appeals for
the second circuit
No. 93-1525. Argued November 7, 1994-Decided February 21, 1995
Petitioner Lebron, who creates billboard displays that comment on
public issues, filed suit claiming, inter alia, that respondent Nation-
al Railroad Passenger Corporation (Amtrak) had violated his First
Amendment rights by rejecting a display for an Amtrak billboard
because of its political nature. The District Court ruled that Am-
trak, because of its close ties to the Federal Government, was a
Government actor for First Amendment purposes, and that its
rejection of the display was unconstitutional. The Court of Appeals
reversed, noting that Amtrak was, by the terms of the legislation
that created it, not a Government entity, and concluding that the
Government was not so involved with Amtrak that the latter's
decisions could be considered federal action.
Held: Where, as here, the Government creates a corporation by
special law, for the furtherance of governmental objectives, and
retains for itself permanent authority to appoint a majority of that
corporation's directors, the corporation is part of the Government for
purposes of the First Amendment. Pp. 3-26.
(a) It is proper for this Court to consider the argument that
Amtrak is part of the Government, even though Lebron disavowed
it in both lower courts and did not explicitly raise it until his brief
on the merits here. It is not a new claim, but a new argument to
support his First Amendment claim, see, e.g., Yee v. Escondido, 503
U. S. ___, ___; it was passed upon below, see, e.g., United States v.
Williams, 504 U. S. ___, ___; and it was fairly embraced within both
the question presented and the argument set forth in the petition.
Pp. 3-8.
(b) Amtrak was created by the Rail Passenger Service Act of
1970 (RPSA) to avert the threatened extinction of passenger trains
in the interest of ``the public convenience and necessity.'' The
legislation establishes detailed goals for Amtrak, sets forth its
structure and powers, and assigns the appointment of a majority of
its board of directors to the President. Pp. 9-12.
(c) There is a long history of corporations created and participat-
ed in by the United States for the achievement of governmental
objectives. Like some other Government corporations, Amtrak's
authorizing statute provides that it ``will not be an agency or estab-
lishment of the United States Government,'' 84 Stat., at 1330; see
also 45 U. S. C. 541. Pp. 12-17.
(d) Although 541 is assuredly dispositive of Amtrak's govern-
mental status for purposes of matters within Congress's control-
e.g., whether it is subject to statutes like the Administrative Proce-
dure Act-and can even suffice to deprive it of all those inherent
governmental powers and immunities that Congress has the power
to eliminate-e.g., sovereign immunity from suit-it is not for
Congress to make the final determination of Amtrak's status as a
government entity for purposes of determining the constitutional
rights of citizens affected by its actions. The Constitution constrains
governmental action by whatever instruments or in whatever modes
that action may be taken, Ex parte Virginia, 100 U. S. 339,
346-347, and under whatever congressional label, Cherry Cotton
Mills, Inc. v. United States, 327 U. S. 536, 539. National Railroad
Passenger Corporation v. Boston & Maine Corp., 503 U. S. ___,___,
and National Railroad Passenger Corporation v. Atchison, T. & S.
F. R. Co., 470 U. S. 451, 470, distinguished. Pp. 18-20.
(e) Amtrak is an agency or instrumentality of the United States
for the purpose of individual rights guaranteed against the Govern-
ment by the Constitution. This conclusion accords with the public,
judicial, and congressional understanding over the years that Gov-
ernment-created and -controlled corporations are part of the Govern-
ment itself. See, e.g., Reconstruction Finance Corp. v. J. G. Meni-
han Corp., 312 U. S. 81, 83; Government Corporation Control Act,
304(a), 59 Stat., at 602. A contrary holding would allow govern-
ment to evade its most solemn constitutional obligations by simply
resorting to the corporate form, cf. Pennsylvania v. Board of Direc-
tors of City Trusts of Philadelphia, 353 U. S. 230, 231. Bank of
United States v. Planters' Bank of Georgia, 9 Wheat. 904, 907, 908,
and Regional Rail Reorganization Act Cases, 419 U. S. 102, 152, dis-
tinguished. Pp. 20-26.
12 F. 3d 388, reversed and remanded.
Scalia, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, Kennedy, Souter, Thomas, Ginsburg, and
Breyer, JJ., joined. O'Connor, J., filed a dissenting opinion.