Molina-Crespo v. U.S. Merit Systems Protection Bd.

• Decision Date: 24 November 2008
• Docket Number: No. 07-3745.,07-3745.
• Citation: 547 F.3d 651
• Parties: Juan MOLINA-CRESPO, Plaintiff-Appellant, v. UNITED STATES MERIT SYSTEMS PROTECTION BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

547 F.3d 651

Juan MOLINA-CRESPO, Plaintiff-Appellant, v. UNITED STATES MERIT SYSTEMS PROTECTION BOARD, Defendant-Appellee.

No. 07-3745.

United States Court of Appeals, Sixth Circuit.

Argued: July 22, 2008.

Decided and Filed: November 24, 2008.

ARGUED: Eric H. Zagrans, Zagrans Law Firm, Elyria, Ohio, for Appellant. Sara B. Rearden, United States Merit Systems Protection Board, Washington, D.C., for Appellee. ON BRIEF: Eric H. Zagrans, Zagrans Law Firm, Elyria, Ohio, for Appellant. Sara B. Rearden, United

States Merit Systems Protection Board, Washington, D.C., for Appellee.

Before: BOGGS, Chief Judge; MOORE and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which MOORE, J., joined. BOGGS, C.J. (pp. 664-67), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Juan Molina-Crespo ("Molina") appeals the district court's grant of summary judgment to the United States Merit Systems Protection Board ("MSPB" or "Board"). Molina challenges the district court's conclusion that the Board did not abuse its discretion in determining that Molina's violation of 5 U.S.C. § 1502(a)(3), the provision of the Hatch Act that regulates the political activity of state employees who administer federal funds, warranted his removal. Molina also appeals the district court's rejection of his challenges to the constitutionality of the Act, including attacks based on equal protection, due process, and the First Amendment. For the following reasons, we affirm the decision of the district court.

BACKGROUND

In 1999, Molina was appointed as the Executive Director of the Lorain County Children and Families First Council ("LCCFFC"), an Ohio government agency that is financed in part by the federal government. The federal government provides funds to Ohio agencies, which are then passed through to the LCCFFC. It is undisputed that, as Director, Molina was subject to the Hatch Act because he was "an individual employed by a State ... agency whose principal employment is in connection with an activity which is financed in whole or in part" by the federal government. 5 U.S.C. § 1501(4).

In December 2003, while serving as Director, Molina officially declared his candidacy in the Democratic primary election for the office of Lorain County Commissioner. On January 13, 2004, Molina received a phone call from the United States Office for Special Counsel ("OSC"), the federal agency charged with administering the Hatch Act. The OSC advised Molina that his candidacy violated § 1502(a)(3) of the Act, which prohibits a "State or local officer or employee" from "be[ing] a candidate for elective office," as well as the Act's implementing regulations embodied in 5 C.F.R. § 151.121(c). During the phone call, the OSC informed Molina that he would either have to resign his position at the LCCFFC or withdraw his candidacy in order to comply with the Act's requirements. Molina, however, told the OSC that he did not consider himself a "covered employee" subject to the Act because the federal funding the LCCFFC received first passed through various state agencies.

On February 3, 2004, the OSC sent a letter to Molina in which it informed Molina that his candidacy violated the Hatch Act, and explained the OSC's basis for its conclusion. It also responded to Molina's earlier statement that he "did not feel he was covered by the Hatch Act" by informing Molina that "an employee is covered by the Hatch Act even if the agency receives the federal funds indirectly through a state agency." (J.A. 293.) The letter also cited the previous phone call and explained that the OSC would provide Molina "an opportunity to come into compliance with the law" by withdrawing his candidacy or resigning his position with the LCCFFC by February 13, 2004. (Id.) Rather than providing evidence of his resignation or withdrawing his candidacy however, on February 13, 2004, Molina sent a letter to the OSC requesting a full hearing before the MSPB, the federal agency charged with adjudicating cases arising under the Hatch Act. See 5 U.S.C. § 1505.

Molina's candidacy for Lorain County Commissioner ended when he failed to win the primary held on March 2, 2004. On October 7, 2004, the OSC filed a formal complaint with the MSPB alleging that Molina violated the Act by being a candidate for elective office. The MSPB assigned the case to an administrative law judge ("ALJ"), and the parties agreed no material facts were in dispute and filed motions for summary judgment. On March 25, 2005, the ALJ issued his decision. The ALJ concluded that Molina had violated the Act when he became a candidate for elected office while serving as Director of the LCCFFC. Further, the ALJ found that Molina's violation warranted removal from his position. With respect to Molina's challenges to the constitutionality of the Act, which he raised in his motion for summary judgment, the ALJ concluded that, under Special Counsel v. Alexander, 71 M.S.P.R. 636, 645 n. 2 (M.S.P.B.1996), the administrative agency could not adjudicate the constitutionality of statutes. As a result, the ALJ did not consider the merits of Molina's arguments regarding the constitutionality of the Act.

On April 29, 2005, Molina petitioned the full MSPB to review the ALJ's determination. The MSPB denied Molina's petition, making the ALJ's decision the final decision of the agency. In addition, the Board ordered the LCCFFC to remove Molina from his position as Director within thirty days and warned that, if the LCCFFC failed to dismiss Molina, it would lose federal funds equal to two years of Molina's pay. On December 2, 2005, Molina resigned.

Molina then sought review of the Board's decision in the United States District Court for the Northern District of Ohio pursuant to 5 U.S.C. § 1508. The parties filed for summary judgment, and the district court ruled in favor of the MSPB. In its decision, the district court upheld the Board's conclusion that Molina violated the Hatch Act, and also found that the Board did not abuse its discretion in concluding that his violation warranted removal. The district court also rejected Molina's claims that the Act violated his First Amendment rights and constitutional guarantees of due process and equal protection. Molina appealed, asserting that the district court erred in rejecting his various challenges to the constitutionality of the Act, and also argued that § 1502(a)(3) violated principles of federalism. With respect to the Board's conclusions, although Molina does not challenge the finding that his actions constituted a violation of the Act, he argues that the district court erred in upholding the Board's conclusion that his violation warranted his removal.

DISCUSSION

I. Constitutional Challenges to the Hatch Act

This Court reviews de novo a district court's grant of summary judgment based on the constitutionality of a statute. See J.L. Spoons, Inc. v. Dragani, 538 F.3d 379, 382 (6th Cir.2008); see also Flamingo Exp., Inc. v. FAA, 536 F.3d 561, 567 (6th Cir.2008) (noting that questions of law are reviewed de novo).¹

On appeal, Molina asserts six challenges to the constitutionality of the Hatch Act. Molina first argues that the Act impermissibly infringes his First Amendment rights to free speech and association. Second, Molina argues that the Act violates the Equal Protection Clause because it discriminates on the basis of wealth, and also because it creates an "irrational classification" that distinguishes between those already holding elective office and those seeking elective office for the first time. In his fourth and fifth challenges, Molina asserts that the Act violates his rights to procedural due process and substantive due process. Finally, Molina argues that the Act intrudes on established principles of federalism.²

A. First Amendment Claims

Molina argues that the Hatch Act impermissibly infringes on his fundamental First Amendment rights to free speech and association, and that this Court should subject the Hatch Act to strict scrutiny. In particular, he contends that strict scrutiny is appropriate because the Hatch Act infringed on his fundamental right to affiliate with a political party. The district court rejected Molina's claims, finding that the Act would survive either rational basis or strict scrutiny review.

The Supreme Court has addressed the constitutionality of the Hatch Act's restrictions on federal employees' political activities, and has concluded that the Act's prohibitions are constitutional. See United Pub. Workers v. Mitchell, 330 U.S. 75, 103-04, 67 S.Ct. 556, 91 L.Ed. 754 (1947); Oklahoma v. United States Civil Serv. Comm'n, 330 U.S. 127, 143-44, 67 S.Ct. 544, 91 L.Ed. 794 (1947); United States Civil Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 567, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). The Court has also upheld challenges to state statutes that impose similar restrictions on state employees. Broadrick v. Oklahoma, 413 U.S. 601, 617-18, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Molina attempts to argue that these decisions are inapplicable since they did not address whether application of the federal Hatch Act to a state employee violates the state employee's constitutional rights. But cf. Oklahoma, 330 U.S. at 143-44, 67 S.Ct. 544 (upholding a decision that a state employee's participation in political activities violated the Hatch Act and warranted his removal from his state position and concluding that, because the government has "power to fix the terms upon which its money allotments to states shall be disbursed," the Hatch Act did not unconstitutionally invade the sovereignty of Oklahoma).

Although neither the Sixth Circuit nor the Supreme Court has addressed the narrow question Molina presents, both this Court and the Supreme Court have held that "there is no protected right to candidacy under the First Amendment, and a public employee may be terminated because of the fact of that employee's candidacy."...