Fed. Election Comm'n v. NRA Political Victory Fund, et al.
| Decision Date | 06 December 1994 |
| Docket Number | 931151 |
| Citation | 513 U.S. 88,114 S.Ct. 537,130 L.Ed.2d 439 |
| Parties | FEDERAL ELECTION COMMISSION, Petitioner, v. NRA POLITICAL VICTORY FUND et al |
| Court | U.S. Supreme Court |
Petitioner Federal Election Commission (FEC) brought this civil action against respondents seeking to enforce a provision of the Federal Election Campaign Act (FECA). The District Court ruled against respondents. The Court of Appeals reversed and entered its judgment on October 22, 1993. Without first seeking or obtaining the Solicitor General's authorization, the FEC filed in its own name a petition for a writ of certiorari on January 18, 1994, two days before the expiration of the 90-day filing period mandated by 28 U.S.C. § 2101(c). The United States filed a brief contending that the FEC lacked statutory authority to represent itself in this case in this Court, but that, pursuant to 28 U.S.C. § 518(a) and its implementing regulation, the Solicitor General had authorized the FEC's petition by letter dated May 26, 1994. This authorization came more than 120 days after the § 2101(c) filing deadline had passed. The FEC filed a brief in response asserting that it has independent statutory authority to represent itself in this Court.
Held:
1. The FEC may not independently file a petition for certiorari in this Court under 2 U.S.C. § 437d(a)(6). That statute empowers the FEC "to . . . appeal any civil action . . . to enforce the provisions of [the FECA]," but it omits any mention of authority to file a "petition for a writ of certiorari" or otherwise conduct litigation before the Supreme Court. By contrast, 26 U.S.C. §§ 9010(d) and 9040(d) explicitly authorize the FEC to "appeal from, and to petition the Supreme Court for certiorari to review " (emphasis added), judgments in actions to enforce the presidential election fund laws, thereby indicating a congressional intent to restrict the FEC's independent litigating authority in this Court to such actions. The contrasting language in §§ 9040(d) and 437d(a)(6) is particularly telling because these sections were originally enacted as part of the same legislation. The mere existence of sound policy reasons for providing the FEC with independent litigating authority in this Court for actions enforcing the FECA does not demonstrate a congressional intent to alter the Solicitor General's prerogative under § 518(a) to conduct and argue the Federal Government's litigation here, since that statutory authority itself represents a policy choice by Congress. Nor is it dispositive that the FEC has represented itself before this Court in several FECA enforcement cases in the past, since none of those cases involved a challenge to the Court's jurisdiction. Moreover, the provisions authorizing the FEC to litigate in the federal courts are not the sort of substantive provisions which can be said to be within the agency's province to interpret. Pp. __.
2. The Solicitor General's "after-the-fact" authorization does not relate back to the date of the FEC's unauthorized filing so as to make it timely. Under governing agency law principles, particularly the doctrine of ratification, the authorization simply came too late in the day to be effective: The Solicitor General attempted to ratify the FEC's filing on May 26, 1994, but he could not himself have filed a certiorari petition on that date because the 90-day time period for filing a petition had already expired. This result is entirely consistent with, and perhaps required by, § 2101(c). If the Solicitor General were allowed to retroactively authorize untimely agency petitions, he would have the unilateral power to extend the 90-day statutory period by days, weeks, or, as here, even months. This would impermissibly blur § 2101(c)'s jurisdictional deadline. Pp. __.
Petition for certiorari dismissed for want of jurisdiction. Reported below: 6 F.3d 821 (CADC 1993).
GINSBURG, J., took no part in the consideration or decision of the case.
Lawrence M. Noble, for petitioner.
Paul Bender, for U.S., as amicus curiae, by special leave of the Court.
Charles J. Cooper, for respondents.
We granted certiorari in this case to review a judgment of the Court of Appeals for the District of Columbia Circuit holding that the congressionally mandated composition of petitioner Federal Election Commission (FEC), including as it did representatives of the Senate and House as nonvoting members, violated the separation of powers principle embodied in the Constitution. We do not reach the merits of the question, however, because we conclude that the FEC is not authorized to petition for certiorari in this Court on its own, and that the effort of the Solicitor General to authorize the FEC's petition after the time for filing it had expired did not breathe life into it.
The Court of Appeals entered judgment in this case on October 22, 1993. The FEC, in its own name, filed a petition for a writ of certiorari on January 18, 1994. The FEC neither sought nor obtained the authorization of the Solicitor General before filing its petition. By order dated March 21, 1994, we invited the United States to file a brief addressing the question "[w]hether the [FEC] has statutory authority to represent itself in this case in this Court." 510 U.S. ----, 114 S.Ct. 2703, 129 L.Ed.2d 832. The United States filed a brief on May 27, 1994, contending that the FEC lacks such statutory authority. The United States stated, however, that pursuant to 28 U.S.C. § 518(a) and its implementing regulation, the Solicitor General had authorized the FEC's petition by letter dated May 26, 1994. See Brief for United States as Amicus Curiae 13. The FEC filed a brief in response on May 31, 1994, asserting that it has independent statutory authority to represent itself before this Court in this case.
A petition for certiorari in a civil case must be filed within 90 days of the entry of the judgment below. 28 U.S.C. § 2101(c). This "90-day limit is mandatory and jurisdictional." Missouri v. Jenkins, 495 U.S. 33, 45, 110 S.Ct. 1651, 1660, 109 L.Ed.2d 31 (1990). Here, the Court of Appeals entered judgment on October 22, 1993, and the FEC filed its petition for certiorari on January 18, 1994, two days before the 90-day time period expired. The FEC's petition would appear to be timely. However, if the FEC lacks statutory authority to represent itself in this case before this Court, it cannot independently file a petition for certiorari, but must receive the Solicitor General's authorization. See 28 C.F.R. § 0.20(a) (1993). The question then becomes whether the Solicitor General's May 26, 1994, letter authorizing the FEC's petition relates back to the date of the FEC's unauthorized filing so as to make it timely. We first examine the scope of the FEC's independent litigating authority.
The FEC is an independent agency established by Congress to "administer, seek to obtain compliance with, and formulate policy" with respect to the Federal Election Campaign Act (FECA) and chapters 95 and 96 of Title 26. 2 U.S.C. § 437c(b)(1). The FECA governs various aspects of all federal elections, see 2 U.S.C. § 431 et seq., whereas chapters 95 and 96 specifically govern the administration of funds for presidential election campaigns and the payment of matching funds for presidential primary campaigns. See 26 U.S.C. § 9001 et seq. (Presidential Election Campaign Fund Act), 26 U.S.C. § 9031 et seq. (Presidential Primary Matching Payment Account Act). The FEC has "exclusive jurisdiction with respect to the civil enforcement of such provisions." 2 U.S.C. § 437c(b)(1); see Federal Election Comm'n v. National Conservative Political Action Comm., 470 U.S. 480, 485, 489, 105 S.Ct. 1459, 1462, 1464, 84 L.Ed.2d 455 (1985).
Two separate statutory provisions provide the FEC with independent litigating authority. The first provision, 2 U.S.C. § 437d(a)(6), applies to actions under both the FECA and chapters 95 and 96 of title 26. It gives the FEC power "to initiate . . ., defend . . . or appeal any civil action . . . to enforce the provisions of [the FECA] and chapter 95 and chapter 96 of Title 26, through its general counsel." 2 U.S.C. § 437d(a)(6). The second provision, which is contained in 26 U.S.C. §§ 9010(d) and 9040(d), applies only to actions under chapters 95 and 96 of Title 26. It authorizes the FEC "on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review, judgments or decrees entered with respect to actions in which it appears pursuant to the authority provided in this section." 26 U.S.C. §§ 9010(d), 9040(d).
The FEC brought this civil enforcement action seeking to establish a violation of 2 U.S.C. § 441b(a), a provision of the FECA. As noted above, 2 U.S.C. § 437d(a)(6) authorizes the FEC to "initiate" and "appeal" an FECA enforcement action such as the present one. Thus, no dispute exists as to the FEC's authority to litigate this case in the District Court or the Court of Appeals;1 the question here concerns only the FEC's independent litigating authority before this Court when it proceeds under § 437d(a)(6).
Title 28 U.S.C. § 518(a) provides in pertinent part:
"Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court . . . in which the United States is interested."
By regulation, the Attorney General has delegated authority to the Solicitor General:
"The following-described matters are assigned to, and shall be conducted, handled, or supervised by, the Solicitor General, in consultation with each agency or official concerned:
"(a) Conducting, or assigning and supervising,...
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