Federal Election Comm'n v. NRA Political Victory Fund, 513 U.S. 88, 7 (1994)

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certiorari to the united states court of appeals for the district of columbia circuit

No. 93-1151. Argued October 11, 1994—Decided December 6, 1994

Petitioner Federal Election Commission (FEC) brought this civil action against respondents seeking to enforce a provision of the Federal Election Campaign Act of 1971 (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 The contrasting language in 9040(d) and 437d(a)(6) is particularly telling because these sections were originally enacted as part of the same legislation.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

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