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Hudson v. American Federation of Government Employees

United States District Court, District of Columbia

February 5, 2018

EUGENE HUDSON, JR., Plaintiff,



         Plaintiff Eugene Hudson, Jr. brought this action alleging that he was improperly removed from his position as National Secretary-Treasurer for Defendant American Federation of Government Employees. Although this litigation has featured some twists and turns - e.g., Hudson's reinstatement via preliminary injunction and his subsequent removal after the Order was vacated - AFGE now files a straightforward Motion to Dismiss. The Court will largely grant the Motion, aside from one count alleging retaliatory termination in violation of Plaintiff's statutory free-speech rights.

         I. Background

         The Court first sets out the conduct for which Hudson was removed and then charts both the Union's procedures and the history of the litigation.

         A. Factual History

         At this juncture, the Court, as it must, treats the allegations in the Complaint as true. AFGE is a national labor organization with over 1000 affiliated local unions. Its elected national officers include a National President, National Secretary-Treasurer, and National Vice-President for Women and Fair Practices. See ECF No. 1 (Complaint), ¶ 3. Hudson was elected National Secretary-Treasurer (NST) for consecutive three-year terms in 2012 and 2015. Id., ¶ 6. In August 2016, Plaintiff announced that he would again run for national office at the next Convention, to be held in August 2018. At the time, he did not specify the position he sought, but he clarified in December 2016 that he would run for President. Id., ¶ 8.

         One week after the 2016 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 did not go through any formal review process before dissemination. It was entitled, “AFGE, the Trump administration, and the attack on the way, ” and 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., Exh. 1 (November 15 Email) 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. According to Hudson, the “email was not part of [his] campaign for AFGE office” but rather “valid commentary on public affairs involving AFGE as an entity and AFGE's members.” Compl., ¶ 10.

         Regardless of its intended purpose, the email rankled several Union officials, including AFGE's General Counsel David Borer. Borer sent a memorandum to Union President David Cox on November 22 regarding potential legal implications of the email. See Compl., Exh. 2. The memorandum noted possible liability under the Hatch Act, which restricts the political activity of certain federal employees. Id. at 1. Borer 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 also potentially exposed it to liability because AFGE annually certifies to its insurance carrier that its General Counsel's Office reviews all publications.

         B. Procedural History

         Nearly one month later, National Vice-President Keith Hill filed an internal charge against Hudson, including, among other allegations, an accusation that Plaintiff's dispatch of the November 15 email was “a supreme case of multiple violations.” Compl., Exh. 3 at 1. Hill believed that, by assigning an AFGE employee the task of sending the email, Hudson had violated the “ethical conduct requirements for all NEC members” and “exposed AFGE to certain civil and/or administrative liability.” Id. at 2. “In addition, ” Hill continued, “the use of AFGE's e-mail directories for personal use is a violation of the policies on official use of AFGE resources.” Id. He did not, however, cite to any portions of the AFGE Constitution or other Union guidelines that prohibit such activity. The charge also alleged that Hudson had violated the ...

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