Vol. 24 Annals of Health Law 395
ing constitutional rights.427 Although Congress could disclaim “Amtrak’s
status as a Government entity for purposes of matters that are within Congress’s control—for example, whether it is subject to statutes . . . such as
the Administrative Procedure Act,” the test for whether Amtrak was a government entity for the purposes of enforcing constitutional rights turned on
the powers and functions it exercised.428 To determine that Amtrak was
“part of the Government itself,” the Court noted “Amtrak was created by a
special statute explicitly for the furtherance of federal governmental
goals.”429 It also highlighted the fact that most of the corporation’s directors
are appointed directly by the President with the advice and consent of the
Senate.430 Relying on the fact that the corporation is organized under federal
law and under the direction and control of federal governmental appointees,
the Supreme Court concluded that “[i]t is in that respect no different from
the so-called independent regulatory agencies such as the Federal Communications Commission or the Securities Exchange Commission, which are
run by Presidential appointees with fixed terms.”431 The Lebron test has
been applied to state-created entities to determine whether a private entity
acted “under color of state law” for the purposes of § 1983.432 “As applied
to states and local governments, this means that it is power and control that
are crucial for governmental status purposes, and not what states and local
governments themselves say about the purportedly private status of their
creations.”433
427. Id.
428. Id.
429. Id. at 397.
430. Id. Most of the corporation’s directors, “six of the corporation’s eight” are appointed. Id.
431. Id. at 398.
432. See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296
(2001) (invoking Lebron in a Fourteenth Amendment case); Horvath v. Westport Library
Ass’n, 362 F.3d 147, 153-54 (2d Cir. 2004) (applying Lebron to determine whether local
Library was a state actor for purposes of § 1983); see also Jorrnigan v. N.M. Mut. Cas. Co.,
No. CIV 03-0813 JB/ACT, 2004 WL 3426437, at *17 ( D.N.M. April 19, 2004) (rejecting
argument that Lebron is limited to evaluating whether national corporations, rather than
state-created entities, are government actors); Sotack v. Pa. Prop. & Cas. Ins. Guar. Ass’n,
104 F.Supp.2d 471, 478-79 (E. D. Pa. 2000) (applying Lebron to the Pennsylvania Property
and Casualty Insurance Guaranty Association, which is a mandatory association of all property and casualty insurance carriers that are authorized to write policies in Pennsylvania).
433. Nahmod, 1 Civil Rights & Civil Liberties Litigation: The Law of Section 1983 §
2:5. There is some underlying tension in applying this test to state and local governments
for the purposes of enforcing § 1983. The reasoning in Lebron relies on the constitutional
nature of the right being enforced. 513 U.S. at 392. The Court stated that the statutory disclaimer of Amtrak’s status “is assuredly dispositive of Amtrak’s status as a Government entity for purposes of matters that are within Congress’s control—for example, whether it is
subject to statutes that impose obligations or confer powers upon Government entities, such
as the Administrative Procedure Act.” Id. However, congressional statements are, inherently,
not dispositive for constitutional rights and therefore, courts decide whether quasi-private
