Lead Opinion
delivered the opinion of the Court.
Wе 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.
The Court of Appeals entered judgment in this case on October 22, 1998.
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,
The FEC is an independent agency estаblished by Congress to “administer, seek to obtain compliance with, and formulate policy” with respect to the Federal Election Campaign Act of 1971 (FECA) and chapters 95 and 96 of Title 26. 86 Stat. 3, as amended, 2 U. S. C. § 437c(b)(l). 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)(l); see Federal Election Comm’n v. National Conservative Political Action Comm.,
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.” The second provision, which is contained in 26 U. S. C. §§ 9010(d) and
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 thе Court of Appeals;
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 eаch agency or official concerned:
“(a) Conducting, or assigning and supervising, all Supreme Court cases, including appeals, petitions for*93 and in opposition to certiorari, briefs and arguments, and ... settlement thereof.” 28 CFR §0.20 (1994).
Thus, if a case is one “in which the United States is interested,” § 518(a), “it must be conducted and argued in this Court by the Solicitor General or his designee.” United States v. Providence Journal Co.,
It is undisputed that this is a case “in which the United States is interested.” 28 U. S. C. § 518(a). We have recognized, however, that Congress may “exempt litigation from the otherwise blanket coverage of [§ 518(a)].” Providence Journal,
Title 2 U. S. C. § 437d(a)(6) 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.” The statute clearly authorizes the FEC to “appeal,” but it omits any mention of authority to file a “petition for a writ of certiorari” or otherwise conduct litigation before the Supreme Court. The FEC argues that the term “appeal” is not defined in the FECA, and that in the absence of such a definition in the statute the term is construed “in accordance with its ordinary or natural meaning.” FDIC v. Meyer,
*94 “There are two stages of appeal in the federаl and many state court systems; to wit, appeal from trial court to intermediate appellate court and then to Supreme Court.”
This argument might carry considerable weight if it were not for the cognate provision authorizing the FEC to enforce chapters 95 and 96 of Title 26. There, Congress has explicitly provided that “[t]he [FEC] is authorized on behalf of the United States to appeal from, and to petition the Supreme Court for certiorari to review,” judgments or decrees. 26 U. S. C. §§ 9010(d), 9040(d) (emphasis added). It is difficult, if not impossible, to place these sections alongside one another without concluding that Congress intended to restrict the FEC’s independent litigating authority in this Court to actions enforcing the provisions of the Presidential election funds under chapters 95 and 96 of Title 26. Such a differentiation by Congress would be quite understandable, since Presidential influence through the Solicitor General might be thought more likely in cases involving Presidential election fund controversies than in other litigation in which the FEC is involved.
The FEC argues that 26 U. S. C. §§ 9010(d) and 9040(d) shed no light on the issue whether 2 U. S. C. § 437d(a)(6) gives it independent litigating authority before this Court because the provisions are found in different statutes, were drafted by different Congresses in different years, and were
We recognize sound policy reasons may exist for providing the FEC with independent litigating authority in this Court for actions enforcing the FECA. Congress’ decision to create the FEC as an independent agency and to charge it with the civil enforcement of the FECA was undoubtedly influenced by Congress’ belief that the Justice Department, headed by a Presidential appointee, might choose to ignore
That statutory authority, too, represents a policy choice by Congress to vest the conduct of litigation before this Court in the Attorney General, an authority which has by rule and tradition been delegated to the Solicitor General. See 28 CFR § 0.20(a) (1994). This Court, of course, is well served by such a practice, because the traditional specialization of that office has led it to be keenly attuned to this Court’s practice with respect to the granting or denying of petitions for certiorari. But the practice also serves the Government well; an individual Government agency necessarily has a more parochial view of the interest of the Government in litigation than does the Solicitor General’s office, with its broader view of litigation in which the Government is involved throughout the state and federal court systems. Whether review of a decision adverse to the Government in a court of appeals should be sought depends on a number of factors which do not lend themselves to easy categorization. The Government as a whole is apt to fare bеtter if these decisions are concentrated in a single official. See Providence Journal,
Congress could obviously choose, if it sought to do so, to sacrifice the policy favoring concentration of litigating
The question is at least presumptively governed by principles of agency law, and in particular the doctrine of ratification. “If an act to be effective in creating a right against another or to deprive him of a right must be performed before a specific time, an affirmance is not effective against the other unless made before such time.” Restatement (Second) of Agency §90 (1958); see also id., Comment a (“The bringing of an action, or of an appeal, by a purported agent can not be ratified after the cause of action or right to appeal has been terminated by lapse of time”). Though in a different context, we have recognized the rationale behind this rule: “The intervening rights of third persons cannot be defeated by the ratification. In other words, it is essential that the party ratifying should be able not merely to do the act ratified at the time the аct was done, but also at the time the ratification was made.” Cook v. Tullis,
The application of these principles of agency law here produces a result entirely consistent with, and perhaps required by, 28 U. S. C. § 2101(c), the statute governing the time for filing petitions for certiorari. “We have no authority to extend the period for filing except as Congress pеrmits.” Jenkins,
We hold that the FEC may not independently file a petition for certiorari in this Court under 2 U. S. C. § 437d(a)(6), and that 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. We therefore dismiss the petition for certiorari for want of jurisdiction.
It is so ordered.
Notes
Under 28 U. S. C. §§ 516 and 519, the conduct of litigation on behalf of the United States and its agencies is subject to control of the Attorney General “[ejxcept as otherwise authorized by law.” The FEC’s “initiation” and “appeal” of this action fall within this “otherwise authorized by law” exception.
The dissent says it is incongruous “to assume that Congress wanted the FEC to have independent authority to invoke our mandatory [appellate] jurisdiction when proceeding under § 437h, but not to have the authority to invoke our discretionary jurisdiction when proceeding under other sections of the same statute.” Post, at 100, n. 1. But Congress could have thought the Solicitor General would better represent the FEC’s interests in cases involving our discretionary jurisdiction “because the traditional specialization of that office has led it to be keenly attuned to this Court’s practice with resрect to the granting or denying of petitions for certiorari.” Infra, at 96.
Dissenting Opinion
dissenting.
The Federal Election Commission (FEC) “is an independent administrative agency vested with exclusive jurisdiction over civil enforcement of the [Federal Election Campaign] Act.” Federal Election Comm’n v. National Right to Work Comm.,
Section 437d(a)(6) expressly provides that the FEC has the power “to initiate . . . , defend ... or appeal any civil action in the name of the Commission to enforce the provisions of this Act and chapter 95 and chapter 96 of title 26, through its general counsel.” It is undisputed that when the statute was enacted, the FEC had the authority to invoke our mandatory jurisdiction by filing an appeal under § 437h of the Federal Election Campaign Act of 1971.
The ambiguity in the word “appeal” is apparent even in §§ 9010(d) and 9040(d), the sections on which the majority relies to cabin the authority granted in §437d(a)(6). In those sections, Congress uses the word “appeal” to describe two different categories of appellate litigation. In the text of those sections, “appeal” is used in contradistinction to “writ of certiorari” to indicate mandatory appeals. But Congress also uses “appeal” as the title to both §§ 9010(d) and 9040(d). See n. 4, infra. As thus used, “appeal” describes an entire category of appellate litigation that includes mandatory appeals and writs of certiorari. I see no reason for assuming that “appeal” in §437d(a)(6) was intended to incorporate the narrow, rather than the broad, understanding of “appeal.”
The historical context in which Congress adopted §437d(a)(6) demonstrates that the interpretation that the Court adopts today is unfaithful to the intent of Congress. Section 437d(a)(6) was passed as part of the Federal Election Campaign Act Amendments of 1974 (FECA). The 1974 amendments represented a response by Congress to perceived abuses arising out of the 1972 Presidential election campaign and culminating in the resignation of President Nixon. Indeed, the legislative history reveals Congress’ belief that “[p]robably the most significant reform that could emerge from the Watergate scandal is the creation of an independent nonpartisan agency to supervise the enforcement of the laws relating to the conduct of elections.”
In short, the legislative history of the 1974 amendments shows that Congress intended the FEC to have ample authority to oversee Presidential campaigns free of Executive influence. The FEC’s authority to conduct civil litigation, including appellate litigation, must be construed in the light of Congress’ intent.
Given the language and historical context of §437d(a)(6), it is unsurprising that the FEC has had a long and uninterrupted history of independent litigation before this Court.
“‘[J]ust as established practice may shed light on the extent of power conveyed by general statutory language, so the want оf assertion of power by those who presumably would be alert to exercise it, is equally significant in determining whether such power was actually conferred.’” Ibid., quoting FTC v. Bunte Brothers, Inc.,312 U. S. 349 , 352 (1941).
See also FPC v. Panhandle Eastern Pipe Line Co.,
In rejecting the result dictated by language, history, and longstanding practice, the majority relies primarily on the differences between §437d(a)(6) and 26 U. S. C. §§ 9010(d), 9040(d).
The differences between §§437d(a)(6) and 9040(d) cannot support the weight that the majority wishes them to bear. The striking similarity between §§9010 and 9040 suggests that when Congress enacted §9040, it did little more than copy the provisions of § 9010.
Furthermore, the majority’s reading of the statutes rests on the anomalous premise that Congress decided to give the FEC authority to litigate Fund Act cases in this Court while denying it similar authority in connection with its broader regulatory responsibilities under the FEC A. The mаjority
“[B]oth the Fund Act and FECA play a part in regulating Presidential campaigns. The Fund Act comes into play only if a candidate chooses to accept public funding of his general election campaign, and it covers only the period between the nominating convention and 30 days after the general election. In contrast, FECA applies to all Presidential campaigns, as well as other federal elections, regardless of whether publicly or privately funded.” Federal Election Comm’n v. National Conservative Political Action Comm.,470 U. S. 480 , 491 (1985).
Finally, though admittedly important, the 1971 Act was a relatively undramatic piece of legislation, enacted before Watergate seized the national (and congressional) attention. The notion that Congress was motivated by a concern about improper Presidential influence in 1971 when it enacted the Fund Act, but ignored such concerns in 1974 when it enacted FECA, is simply belied by “a page of histоry.” See New York Trust Co. v. Eisner,
During two decades of FEC litigation we have repeatedly recognized that the FEC’s express statutory authority to initiate, defend, or “appeal any civil action” to enforce FECA “through its general counsel” encompasses discretionary appellate review as well as the now almost extinct mandatory appellate review in this Court. Because I remain persuaded that this settled practice was faithful to both the plain language and the underlying purpose of §437d(a)(6), I respectfully dissent.
Under the original statutory scheme, certain сonstitutional challenges were to be certified to a court of appeals sitting en banc, with “appeal directly to the Supreme Court.” 2 U. S. C. §437h (1976 ed. and Supp. III). See generally California Medical Assn. v. Federal Election Comm’n,
See Final Report of the Select Committee on Presidential Campaign Activities, S. Rep. No. 93-981, 93d Cong., 2d Sess., 564 (1974).
The FEC has represented itself in cases resulting in decisions, on the merits, see ante, at 97, and as amicus curiae, see, e. g., First Nat. Bank of Boston v. Bellotti,
Sections 9010(d) and 9040(d) are identical. They read:
“(d) Appeal. The Commission is authorized 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.”
The 1974 amendment transferred those responsibilities to the FEC.
As noted at n. 4, swpra, §§ 9010(d) and 9040(d) are identical. The other provisions of those statutes, though not identical, are substantially similar. Compare, e. g., § 9010(b) (“The Commission is authorized through attorneys and counsel described in subsection (a) to appear in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary of the Treasury as a result of examination, and audit made pursuant to section 9007”) with § 9040(b) (“The Commission is authorized, through attorneys and counsel described in subsection (a), to institute actions in the district courts of the United States to seek recovery of any amounts determined to be payable to the Secretary as a result of an examination and audit made pursuant to section 9038”).
As an aside, I note that the majority’s strict reading of §§ 9010(d) and 9040(d) creates its own oddities. For example, it seems to me that an open question under the Court’s narrow reading of the statutes is whether the FEC has the right to file briefs in opposition to the certiorari petitions filed by its adversaries. Compare § 9010(d) (granting the FEC authority to “petition the Supreme Court for certiorari to review”) with 28 CFR § 0.20 (1994) (delegating to the Solicitor General authority to file “petitions for and in opposition to certiorari”) (emphasis added).