Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 28 (1995)

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Cite as: 513 U. S. 374 (1995)

O'Connor, J., dissenting

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. 519, 537-538 (1992) (emphasis deleted). 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 535. 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 nevertheless 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 dis-

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