Crespo v. U.S. Merit Systems Protection Bd., 1:05-cv-2796.

Decision Date16 February 2007
Docket NumberNo. 1:05-cv-2796.,1:05-cv-2796.
Citation486 F.Supp.2d 680
PartiesJuan Molina CRESPO, Plaintiff, v. UNITED STATES MERIT SYSTEMS PROTECTION BOARD, Defendant.
CourtU.S. District Court — Northern District of Ohio

Sara B. Rearden, U.S. Merit Systems Protection Board Office of the General Counsel, Washington, DC, for Defendant.

MEMORANDUM OF OPINION AND ORDER

POLSTER, District Judge.

Before the Court are Plaintiff Juan Molina-Crespo's Motion for Summary Judgment ("Plaintiffs Motion") (ECF No. 15) and the Cross Motion for Summary Judgment filed by Defendant Merit Systems Protection Board ("MSPB") ("Defendant's Motion") (ECF No. 18). Similarly before the Court is Plaintiff Molina-Crespo's Petition for Review of Administrative Agency Determination and Order ("Plaintiff's Petition") (ECF No. 1). For the following reasons, Plaintiff's Motion is DENIED, Defendant's Motion is GRANTED, Plaintiffs Petition is DENIED, and the claim is dismissed with prejudice.

I. BACKGROUND

The undisputed facts are as follows.

Beginning in 1999, Plaintiff Juan Molina-Crespo was employed as the Director of the Lorain County Children and Families First Council ("LCCFFC"), a governmental agency financed in part by the federal government via pass-through funding from the Ohio Department of Jobs and Family Services and from the Ohio Department of Health. (ECF No. 19:3.) In this capacity, Molina-Crespo was a "covered employee" under the federal Hatch Act ("the Act"), 5 U.S.C. § 1501 et seq.1 Molina-Crespo filed papers with the Lorain County Board of Elections in December of 2003, declaring that he would be a candidate in the Democratic primary election for the office of Lorain County Commissioner, to be held on March 2, 2004. (ECF No. 15-2:2.) On January 13, 2004, the Office of Special Counsel ("OSC"), pursuant to OSC's duty to administer and enforce compliance with the Act, contacted Molina-Crespo by telephone and advised him that his candidacy violated the Act. (ECF No. 8, ALJ's Summary Adjudication/Initial Decision:4.) Specifically, OSC had determined that Molina-Crespo's candidacy violated 5 U.S.C. § 1502(a)(3)2 and its implementing regulations found at 5 C.F.R. § 151.121(c). Section 1502(a)(3) prohibits covered employees from running for elective office.

Then, in a February 3, 2004 letter from, OSC to Molina-Crespo, he was again advised that his candidacy violated the Act. (ECF No. 8, ALJ's Summary Adjudication/Initial Decision:4-5.) In the initial contact, OSC advised Molina-Crespo that to come into compliance with the Act, he would have to either resign from his position or withdraw his candidacy. (Id.) The subsequent letter repeated this instruction, and requested that Molina-Crespo resign or withdraw by February 13, 2004.(/d.) Molina-Crespo thereafter sent a response letter to OSC dated February 13, 2004, requesting a full hearing before the MSPB. (Id.)

Molina-Crespo did not win the primary election on March 2, 2004, nor did he resign his position as Director of LCCFFC during that time. OSC filed a complaint against Molina-Crespo on October 7, 2004, alleging that he violated § 1502(a)(3) of the Act by being a candidate for elective office for the March 2, 2004 election. The parties agreed there were no material facts in dispute and that the matter was appropriate for disposition on the pleadings by the Administrative Law Judge ("ALF) considering the complaint. Accordingly, the parties filed cross-motions for summary judgment. Molina-Crespo first raised his constitutional arguments in his motion before the ALJ.

The ALJ, in his Initial Decision dated March 25, 2005, held that Molina-Crespo violated the Act, and that his violation consequently warranted Molina-Crespo's removal as Director of LCCFFC. The ALJ also concluded that he did not have the power or authority to rule on the constitutionality of the Act. (ECF No. 15-2:3-4.)

Approximately one month later, on April 29, 2005, Molina-Crespo timely petitioned the full MSPB to review the ALJ's Initial Decision. The parties briefed the MSPB on the merits of the case, as well as the question of whether the agency had the legal power and authority to pass on the constitutionality of a federal statute the agency must enforce. (Id.:4.) The MSPB issued its final order denying the petition for review on November 4, 2005. The MSPB's order did not address the constitutional arguments. The MSPB's final order also directed LCCFFC to remove Molina-Crespo from his position within 30 days. Molina-Crespo subsequently resigned, effective December 2, 2005.

On December 5, 2005, having exhausted all available administrative remedies and with the MSPB's order constituting a final administrative agency decision3, Molina-Crespo filed his Petition in the instant case, seeking federal district court review pursuant to § 1508. (ECF No. 1.) On April 20, 2006, MSPB filed its answer to Molina-Crespo's petition. (ECF No. 9.) Molina-Crespo filed the Plaintiff's Motion and accompanying supporting memorandum on July 24, 2006. (ECF No. 15.) On October 20, 2006, MSPB timely filed a response to Molina-Crespo's Motion, as well as its own Motion and supporting memorandum. (ECF Nos. 18, 19.) Molina-Crespo, on December 4, 2006, filed a reply to MSPB's opposition brief, and an opposition brief to MSPB's Motion. (ECF No. 20.) After reviewing these documents, the Court, on December 7, 2006, ordered MSPB to file a brief addressing certain equal protection arguments Molina-Crespo raised in his December 4, 2006 filing. MSPB complied in a brief filed on January 12, 2007. (ECF No. 21.) The respective Motions and the Petition have been fully briefed and are now ripe for adjudication.

II. JURISDICTION

The Court has jurisdiction to consider Molina-Crespo's appeal of MSPB's conclusions pursuant to 5 U.S.C. § 1508. Venue is proper pursuant to 5 U.S.C. § 1508 because Molina-Crespo lives within the Northern District of Ohio.

The Court has jurisdiction to consider Molina-Crespo's constitutional arguments pursuant to 28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(e)(3).

III. ANALYSIS

The Court at the outset notes concerns articulated by the Sixth Circuit in Alexander v. Merit Systems Protection Board ("MSPB"), 165 F.3d 474, 480-81 (6th Cir. 1999). In Alexander, the Sixth Circuit cited Tenth Circuit precedent in the context of analyzing a district court's review of a MSPB ruling. Alexander, 165 F.3d at 480-81 (citing Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10th Cir.1994)). The Sixth Circuit "suggested that the use of summary judgment is inappropriate for judicial review of an administrative action under the Administrative Procedures Act." Donaldson v. United States, 109 Fed.Appx. 37, 39-40 (6th Cir. 2004) (citing Alexander, 165 F.3d at 480). The primary concern with treating agency decision reviews via summary judgment motions is "it invites improper consideration of evidence outside the administrative record and reliance upon post hoc rationalizations for the agency's action." Alexander, at 480. Instead, according to the Olenhouse court, the district court functions as an appellate court for purposes of reviewing an administrative action, and such reviews are appropriately processed as appeals wherein summary judgments motions are inappropriate. Id.

The Sixth Circuit has not formally adopted the Olenhouse rule, however. See Air Brake Systems, Inc. v. Mineta, 202 F.Supp.2d 705, 709 (E.D.Mich.2002) (stating the Sixth Circuit has "suggested, without deciding," that summary judgment is inappropriate for reviewing administrative actions); King v. Norton, 160 F.Supp.2d 755, 760 (E.D.Mich.2001) (same). Instead, the Sixth Circuit has "nonetheless considered the merits of the case if the district court applied the proper standard of review and did not consider evidence outside of the administrative record." Donaldson, 109 Fed.Appx. at 40 (citing Alexander, 165 F.3d at 480).

Accordingly, this opinion is divided into two parts. Part 1 consists of the Court's appellate review of the MSPB's decision that Molina-Crespo violated the Act, and that his violation warranted removal from his job. The facts underlying these two related decisions are undisputed and considered at length by the MSPB in its Initial Decision.

Part 2 contains this Court's review and analysis of Molina-Crespo's constitutional arguments. Although the evidence supporting Molina-Crespo's claim that the Act is unconstitutional was presented to the MSPB, that evidence is arguably "new" evidence unconsidered during the administrative proceedings; the MSPB explicitly declined to address Molina-Crespo's constitutional arguments. Therefore the Court functions as a trial court in Part 2 to appropriately review the parties' respective Motions.

PART 1

In Part 1, Molina-Crespo argues that the MSPB's rulings — that he violated the Act and that the proper consequence was his removal — are not supported by substantial evidence and are based on erroneous interpretation of law and regulation.4 He also argues that the Act is unconstitutional, and consequently the MSPB's decision applying the Act is not "in accordance with the law," with "the law" being the United States Constitution.

A. The Act and Applicable Legal Standards

Section 1502(a)(3) of the Act prohibits a covered state or local employee from running as a candidate for elective office. Under § 1505, the Board has final jurisdiction to determine whether the Hatch Act has been violated, and "whether the violation warrants the removal of the officer or employee from his office or employment[.]" § 1505(2). Further, "the Board's determination may be reversed only when the reviewing court determines that the Board abused its discretion, or that the decision was not in accordance with the...

To continue reading

Request your trial
3 cases
  • Molina-Crespo v. U.S. Merit Systems Protection Bd.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • 24 Noviembre 2008
    ...the rational basis test," it also conducted an alternative analysis applying strict-scrutiny review. Crespo v. U.S. Merit Sys. Protection Bd., 486 F.Supp.2d 680, 691 (N.D.Ohio 2007). The district court concluded that Molina's "First Amendment rights of free speech, free association, and pol......
  • Burke v. Bennett
    • United States
    • Indiana Appellate Court
    • 13 Noviembre 2008
    ...(citing Special Counsel v. Brondyk, 42 M.S.P.R. 333, 337 (M.S.P.B.1989); 5 U.S.C. § 1502(a)(3) (1988)); Crespo v. U.S. Merit Systems Protection Bd., 486 F.Supp.2d 680 (N.D.Ohio 2007) ("Partisan candidacy by a covered employee is a `per se violation' of the C. Whether Bennett Was Ineligible ......
  • In re Nat'l Prescription Opiate Litig.
    • United States
    • U.S. District Court — Northern District of Ohio
    • 19 Agosto 2019
    ...SOMS. This evidence results in a conflict of material fact to be resolved by a jury. See Crespo v. U.S. Merit Systems Protection Bd., 486 F.Supp.2d 680, 689 (N.D. Ohio 2007) (citing Cox v. Kentucky Dept. of Transp., 53 F.3d 146, 148 (6th Cir. 1995). b. Failure to Identify and Report Suspici......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT