98
Opinion of the Court
Because the FEC lacks statutory authority to litigate this case in this Court, it necessarily follows that the FEC cannot independently file a petition for certiorari, but must receive the Solicitor General's authorization. See 28 CFR § 0.20(a) (1994). By letter dated May 26, 1994, the Solicitor General authorized the petition filed by the FEC. The Solicitor General's authorization, however, did not come until more than 120 days after the deadline for filing a petition had passed. See 28 U. S. C. § 2101(c). We must determine whether this "after-the-fact" authorization relates back to the date of the FEC's unauthorized filing so as to make it timely. We conclude that it does not.
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 act was done, but also at the time the ratification was made." Cook v. Tullis, 18 Wall. 332, 338 (1874) (emphasis added). Here, the Solicitor General attempted to ratify the FEC's filing on May 26, 1994, but he could not himself have filed a petition for certiorari on that date because the 90-day time period for filing a petition had expired on January 20, 1994. His authorization simply came too late in the day to be effective. See, e. g., Nasewaupee v. Sturgeon Bay, 77 Wis. 2d 110, 116-119, 251 N. W. 2d 845,
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