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Hudson v. American Federation of Government Employees

United States District Court, District of Columbia

November 9, 2017

EUGENE HUDSON, JR., Plaintiff,


          JAMES E. BOASBERG United States District Judge

         For Plaintiff Eugene Hudson, former National Secretary-Treasurer for Defendant American Federation of Government Employees, the results of the 2016 federal election demanded immediate action. The following week, he directed an AFGE subordinate to send a blast email to hundreds of union members warning of a likely future attack on organized labor by President-Elect Trump and the new Republican-controlled Congress. Other members of AFGE leadership believed the email was inappropriate, a charge that culminated in Hudson's removal from elected office. Believing such process was infected with bias and seeking reinstatement, Plaintiff has sued and now moves for a preliminary injunction against the Union. Finding that all four injunctive factors weigh in his favor, the Court will grant the Motion and require AFGE to return Hudson to his office, at least until a full and fair hearing on his removal can take place.

         I. Background

         As the underlying facts are largely undisputed, the Court first sets forth the conduct that led to Hudson's ouster and then details the internal Union procedures followed here.

         A. Factual History

         AFGE is a national labor organization representing federal and D.C. government employees. See ECF No. 1 (Complaint), ¶ 2. Its leadership body, the National Executive Council, consists of a National President, National Secretary-Treasurer, National Vice-President for Women and Fair Practices, and the National Vice-Presidents for the twelve AFGE districts. Id., ¶ 3. Hudson was elected to two consecutive three-year terms as National Secretary-Treasurer beginning in 2012. Id., ¶ 6. Convention delegates will vote in 2018 on, among other offices, a National President and a National Secretary-Treasurer. Id., ¶ 7. In August 2016, Plaintiff announced that he would again be running for national office at the 2018 Convention but did not specify for which position. Id., ¶ 8. He clarified in December 2016 that he would run for President. Id.

         On November 15, 2016 - one week after the American presidential election - Plaintiff, using an AFGE computer and email, directed his subordinate to send an email to “several hundred AFGE officers and members.” Id., ¶¶ 9, 11. The recipients included both personal and federal-government email addresses. Id., ¶ 11. The three-and-a-half-page email carried the subject line, “From the Desk of National Secretary-Treasurer Eugene Hudson, Jr., ” Def. Opp., Exh. 3 at 1, and the body was entitled, “AFGE, the Trump administration, and the attack on the way.” Compl., Exh. 1 at 1. It stated, in relevant part:

For many of us, the results of the November 8th election were unexpected. There remains much to analyze about the election . . . [b]ut one thing is certain, the new administration and the Republican Congressional majority have a bull's eye planted on the backs of federal workers and the unions that represent them. The question is whether we are ready for this assault. . . .
Is AFGE prepared for this? [AFGE] President Cox has spoken up on this and has reminded us all of some of the efforts that have been undertaken under the banner of “Too Big to Fail.” Such efforts are important to support, though I will suggest that we need to completely rethink the battlefield terrain on which we have been operating. . . .
The Trump administration, and their allies in Congress, will claim that they have a “mandate” to reconstruct the federal government and workforce. Our response should be “mandate my…” There is no mandate. Trump did not even get the majority of the popular vote!

Id. at 1-2. The email then lists four items for consideration: 1) “Recognize that we must fight; we have no choice”; 2) “Rethink the way that we operate as an organization”; 3) “We need to build our support within the larger community”; and 4) “[T]his is a time for AFGE to join with other unions operating in the federal sector in coordinated responses to the attacks.” Id. at 2-3. No one reviewed the email prior to Hudson's distribution.

         The next day, Hudson sent another email to a select group of AFGE members stating that the November 15 email was his “personal opinion” and was not “an official statement from AFGE.” Def. Opp., Exh. 3 at 1. The email, however, had already attracted the attention of several Union officials, including President David Cox, NVP Gerald Swanke, and General Counsel David Borer. Cox was concerned that the email might constitute a “Hatch Act Violation and bring harm to AFGE and our members.” Id. Swanke thought it “outrageous” that an AFGE policy statement would “be sent out to the membership without knowledge and consent of the [National Executive Council].” Id. On November 22, Borer sent a memorandum to Cox regarding legal issues surrounding the email. See Compl., Exh. 2. Of particular concern to Borer were possible legal implications under the Hatch Act, which prohibits federal employees from making partisan political statements using government resources or on government property. Although Hudson is not a federal employee, by sending the email to government addresses, Borer believed that those employees might unwittingly violate the Hatch Act by further disseminating the email. The memorandum also suggested that Hudson may have misappropriated Union resources by using its assets “(the email list, staff time, AFGE email, and AFGE equipment), ” id. at 6, and exposed the Union to insurance liability because AFGE annually certifies to its insurance carrier that its General Counsel Office reviews all publications.

         B. Procedural History

         Nearly one month later, on December 21, 2016, National Vice-President Keith Hill filed an internal charge against Plaintiff pursuant to the AFGE National Constitution. See Compl., Exh. 3. Hill accused him of various infractions under the AFGE Constitution, including three violations of Article XXIII, which proscribes certain “conduct detrimental or inimical to the best interests” of the Union. See Compl., Exh. 4 (AFGE Constitution) at 63. The allegations included the post-election email. Hill did not serve Hudson with a copy of the charge as required by the constitution, but Borer sent it to him on February 22, 2017. See Compl., ¶¶ 15-17.

         The charge proceedings then followed the relevant AFGE guidelines. See AFGE Const.; Compl., Exh. 6 (Committee of Investigation Guidelines and Procedures Manual). A Committee of Investigation was appointed, which was composed of NVP Swanke and two other members, Alma Lee and Gabrielle Martin. See Compl., ¶ 21. The Committee began its investigation and asked Plaintiff a series of questions. On July 3, Hudson submitted his written response and also asked that Swanke recuse himself; because Swanke had previously filed a charge against Hudson, Plaintiff doubted his impartiality. Id., ¶ 26. The Committee met the following week and decided that Swanke would need to recuse only if they could not reach a unanimous decision. Id., ¶ 28. The three members then considered the charges against Plaintiff and dismissed two of them. With regard to the third - sending the November 15 email - they stated:

The Committee finds probable cause exists for the specific charge of malfeasance of office. Article 23 Sec. 2(f) Engaging in gross neglect of duty or conduct constituting ...

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