Augusti and Augusti for Congress v. FEC

On April 26, 2005, the U.S. District Court for the Western District of Tennessee granted in part the Commission’s motion to dismiss this case, and on August 10, the plaintiff voluntarily dismissed the complaint. The court found that Mark A. Augusti lacked standing to challenge the FEC’s final determination against Mark A. Augusti for Congress (the Committee) and its treasurer. The court also found that Mr. Augusti could not act as the Committee’s pro se legal counsel and gave the Committee 30 days to retain a licensed attorney or the case would be dismissed for failure to prosecute. Mr. Augusti informed the court on June 2 that he did not intend to retain counsel for the Committee.

Background

On June 30, 2003, the Commission found reason to believe that the Committee had filed its 2002 Year End report 26 days late.  2 U.S.C. §434(a). On May 19, 2004, the Commission made a final determination that the Committee had violated 2 U.S.C. §434(a) and assessed a $750 civil money penalty. 11 CFR 111.43. The Commission did not accept the treasurer’s absence from the country until mid-January as an “extraordinary circumstance” that prevented her from timely filing the report.  11 CFR 111.35(b)(1)(iii).

On June 2, 2004, Mr. Augusti replaced the treasurer, and on June 16, he and the Committee filed a complaint in the U.S. District Court for the Western District of Tennessee. The plaintiffs asked the court to review a final determination and a civil penalty assessed by the Commission under its administrative fines regulations.

In their complaint, the plaintiffs alleged that the FEC Reviewing Officer’s recommendation that the Commission find the Committee in violation of 2 U.S.C. §434(a) and assess a civil penalty did not take into account a conversation on or about February 24, 2003, between the Committee’s treasurer at the time and an FEC staff member. The plaintiffs alleged that by failing to include the substance of that telephone conversation in the record for review, “the FEC negligently and inappropriately assessed a monetary penalty against the Campaign.” The plaintiffs asked the court to set aside the final determination and monetary penalty.

Court decision

The court granted the Commission’s motion to dismiss the case with respect to Mr. Augusti, finding that he lacked standing to challenge the administrative determination because he was not named as a respondent in the Commission’s final determination and order. The court also found that Mr. Augusti could not challenge the Commission’s final determination with respect to the Committee because he is not a licensed attorney. Although a litigant may appear in federal court either pro se or through counsel, a corporation or association, such as a political committee, must be represented by a licensed attorney. See Rowland v. California Men’s Colony, 506 U.S. 194, 201-02 (1993) and Cousino v. Nowicki, No, 97-1905, 1998 WL 708700, at *1 (6th Cir. Oct. 2, 1998).

The court did not find that dismissal of the case with respect to the Committee was warranted. Although Mr. Augusti cannot represent the Committee in federal court, he did represent the Committee before the Commission. The court determined, as a result, that “the error was attributable to the candidate’s ignorance of the procedural rules applicable in federal court.” The court ordered the Committee to retain a licensed attorney to represent it in this action within 30 days of the court’s order. On June 2, 2005, Mr. Augusti informed the court that he would not be hiring counsel for the Committee and thus, he was withdrawing the complaint. On August 10, 2005, the Court signed an order dismissing the case.

Source: FEC Record — October 2005; and January 2005