404
O'Connor, J., dissenting
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. Independent Ins. Agents of America, Inc., 508 U. S. 439 (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 382. Independent Ins. Agents, however, held only that the Court of Appeals had authority to consider a waived claim sua sponte and did not abuse its discretion 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 Ins. Agents centered on the interpretation of a statute that may not have existed, and, as the Court recognizes, ante, at 383, n. 3, the decision simply applied the traditional principle that "[t]here can be no estoppel in the way of ascertaining the existence of a law." 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),
*The Court would read more into the decision, because we "decline[d] even to brush aside the Court of Appeals' (questionable) contention that there was 'a "duty" to address the status of section 92,' saying only that '[w]e need not decide' that question." Ante, at 383, n. 3. But by (prudently) reserving the question, the Court could not have implied its answer. And our "complicit[y] in the [Court of Appeals'] enterprise," ibid., exists only if one indulges in the unlikely inference that we held more than what we said we did.
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