Hudson, Jr. v. American Federation of Government Employees

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

EUGENE HUDSON, JR.,

Plaintiff, v. Civil Action No. 17-1867 (JEB) AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,

Defendant.

MEMORANDUM OPINION

The long-running dispute between Plaintiff Eugene Hudson, Jr. and Defendant American

Federation of Government Employees has spanned multiple lawsuits; here alone it has wound its

way through three preliminary-injunction motions, two motions to dismiss, and an amended

complaint. Unlike this litigation’s many twists and turns, resolution of Hudson’s latest

summary-judgment bid is straightforward, as he seeks judgment on a theory nowhere to be found

in the relevant section of his Amended Complaint. The Court, accordingly, will deny his

Motion.

I. Background

Before setting out the facts in the light most favorable to the non-movant, see Talavera v.

Shah, 638 F.3d 303, 308 (D.C. Cir. 2011), the Court pauses to address a threshold concern.

Defendant points out that Plaintiff has not complied with Local Rule 7(h), which requires a

summary-judgment movant to submit a separate statement of undisputed material facts with

citations to supporting parts of the record. See ECF No. 120 (Def. Opp.) at 3. AFGE is, for the

most part, correct. Hudson attaches no such separate statement to his Motion. And the factual

1 recitation in his brief is largely barren of references to the record. While he claims that his

statement of undisputed material facts “begins at Paragraph 56 of the summary judgment

motion,” ECF No. 125 (Pl. Reply) at 8, the averments that follow contain only two unhelpful

citations. See ECF No. 116 (Pl. MSJ), ¶ 57 (citing AFGE Constitution); id., ¶ 68 (citing manual

of parliamentary procedure).

These deficiencies alone could warrant a grant of summary judgment in Defendant’s

favor. See SEC v. Banner Fund Intern., 211 F.3d 602, 615–16 (D.C. Cir. 2000) (upholding

district court’s grant of summary judgment for SEC when defendant failed to follow Local Rule

7.1(h)). The procedure contemplated by Local Rule 7(h), after all, is not an empty formality.

Indeed, it serves a critical function by helping to “crystallize for the district court the material

facts and relevant portions of the record,” instead of forcing the Court to waste efforts “sift[ing]

and sort[ing] through the record” itself. Jackson v. Finnegan, Henderson, Farabow, Garrett &

Dunner, 101 F.3d 145, 151, 153 (D.C. Cir. 1996) (interpreting predecessor rule to LCvR

7(h)(1)).

The Court, however, need not rest its judgment on Plaintiff’s procedural shortcomings,

for his Motion readily falters on independent grounds. Before explaining why that is so, the

Court will relate the facts giving rise to this latest skirmish between Hudson and AFGE.

Because this litigation’s lengthy history only obliquely informs the Court’s ruling here, the

briefest of summaries will suffice.

AFGE is a national labor organization representing over 1000 federal and D.C.

government employees. See ECF No. 36 (Amended Complaint), ¶ 2. Hudson became the

organization’s National-Secretary Treasurer in 2012, winning reelection to another three-year

term in 2015. Hudson v. AFGE, No. 17-1867, 2019 WL 3533602, at *1 (D.D.C. Aug. 2, 2019).

2 In that position, he served on AFGE’s National Executive Council, which consists of the NST,

two other full-time national officers, and National Vice-Presidents for each of the twelve AFGE

districts. See Am. Compl., ¶ 3.

The present dispute arose in mid-2016, when Hudson faced an internal charge that he had

engaged in improper campaign activities. Hudson v. AFGE, 308 F. Supp. 3d 121, 124 (D.D.C.

2018). Pursuant to Article 13 of the AFGE Constitution, a Committee of Investigation was

appointed in February 2017 to consider the charges. Id. On August 8, 2017, the full NEC

adopted the Committee’s report, found Hudson guilty of the referred charge, and voted 12-to-1 to

remove him from his position as NST. Id. at 125; Am. Compl., Exh. 16.

Dissatisfied with that outcome, Hudson filed suit in this Court, contending that several

participants in the 2017 Committee and NEC proceedings were biased against him. Hudson v.

AFGE, 292 F. Supp. 3d 145, 151–52, 154 (D.D.C. 2017). The Court agreed, finding that NVP

Gerald Swanke’s participation on the Committee, notwithstanding his previous clashes with

Hudson, likely deprived him of a full and fair hearing. Id. at 155–56. The Court, accordingly,

ordered Plaintiff reinstated. Id. at 157. That state of affairs did not last long.

In November 2017, AFGE appointed a second Committee of Investigation to reprocess

the charges against Hudson. Hudson, 308 F. Supp. 3d at 126; ECF No. 14 (Def. Mot. to Stay),

Exh. 1 (Declaration of Cheryl Eliano), ¶ 4. Several NVPs whom Hudson had previously alleged

were biased recused themselves, including Swanke, George McCubbin, and — as particularly

relevant here — Eric Bunn. See Eliano Decl., ¶ 5. The new Committee nonetheless found

probable cause that Hudson had committed two violations. Hudson, 308 F. Supp. 3d at 126. It

then referred both charges to the NEC, which convened on February 6, 2018. Id. Swanke and

McCubbin again recused themselves, as did then-NST Joseph Flynn, and AFGE President David

3 Cox did not vote. See ECF No. 39 (Feb. 6, 2018, NEC Transcript) at 34, 39–40. Bunn,

however, participated and voted in full. Id. at 37, 126–27. The NEC ultimately found Hudson

guilty once again and voted to remove him from office, this time by a 10-to-1 margin. Id. at

125–27.

Following this second removal, Hudson filed an Amended Complaint. Counts I and II

allege that AFGE violated his rights under the Labor-Management Reporting and Disclosure Act

when it removed him in August 2017 and February 2018, respectively. See Am. Compl., ¶¶ 80–

159. Count III charges that AFGE acted contrary to its Constitution, violating the Labor

Management Relations Act. Id., ¶¶ 160–181. Count IV was ultimately dismissed. Hudson v.

AFGE, 318 F. Supp. 3d 7, 15 (D.D.C. 2018). Although very contentious discovery remains

ongoing, Hudson now moves for summary judgment.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the

substantive outcome of the litigation. Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S.

at 248. A dispute is “genuine” if the “evidence is such that a reasonable jury could return a

verdict for the nonmoving party.” Liberty Lobby, Inc., 477 U.S. at 248. “A party asserting that

a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts

of materials in the record” or “showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to

support the fact.” Fed. R. Civ. P. 56(c)(1).

4 When a motion for summary judgment is under consideration, “[t]he evidence of the non-

movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty

Lobby, Inc., 477 U.S. at 255; see also Mastro v. PEPCO, 447 F.3d 843, 850 (D.C. Cir. 2006);

Aka v. Wash. Hosp. Ctr., 156 F.3d 1284, 1288 (D.C. Cir. 1998) (en banc). The nonmoving

party’s opposition, however, must consist of more than mere unsupported allegations or denials

and must be supported by affidavits, declarations, or other competent evidence, setting forth

specific facts showing that there is a genuine issue for trial. See Fed. R. Civ. P. 56(e); Celotex

Corp. v. Catrett, 477 U.S. 317, 324 (1986).

III. Analysis

Right out of the gate, Hudson’s Motion encounters an insurmountable hurdle: it is based

in whole on a claim he did not plead. Specifically, while Plaintiff’s summary-judgment brief

contends that AFGE violated its own Constitution by allowing the allegedly biased Bunn to

participate in the February 6, 2018, NEC meeting, the relevant section of Hudson’s Amended

Complaint contains no mention of this allegation. Because he “may not assert new claims in a

motion for summary judgment,” his present bid does not make it around the track. McKinney v.

United States, 75 F. Supp. 3d 266, 279 (D.D.C. 2014).

Hudson’s opening brief asserts but a single argument — namely, that “AFGE’s decision

to allow Mr. Bunn to serve on the second, purportedly impartial NEC panel [on February 6,

2018,] precluded Plaintiff from receiving a full and fair hearing.” Pl. MSJ at 16. He does not

protest the participation of any other individual, and he does not allege any impropriety besides

the February 2018 NEC meeting. His Motion, therefore, rests entirely on the proposition that

Bunn was biased against him, and that Bunn’s participation and vote for his removal in February

2018 “tainted the proceedings” and denied him a “full and fair hearing.” Id.; see also id. at 10

5 (“AFGE should not have permitted Mr. Bunn to sit on the ‘unbiased tribunal,’ deliberate and

vote”).

Nowhere in his opening brief, however, does Plaintiff articulate the legal claim to which

these allegations pertain. After Defendant pointed out that glaring absence, see Def. Opp. at 2,

Plaintiff attempted to fill the void in his reply brief, explaining that his “motion for summary

judgment is based on Count III of his Complaint.” Pl. Reply at 1. According to Plaintiff, “[B]y

permitting Bunn, a biased NEC member, to vote[,] AFGE failed to provide Plaintiff with an

unbiased tribunal, in violation of Mr. Hudson’s third party beneficiary rights guaranteed by the

AFGE National Constitution under the Labor Management Relations Act.” Id. at 1–2. Count

III, indeed, does assert violations of the AFGE Constitution and arises under Section 301 of the

LMRA, which provides a federal cause of action for suits alleging a violation of contracts

between labor organizations. See Am. Compl., ¶¶ 162–63 (citing 29 U.S.C. § 185(a)). Because

the AFGE Constitution qualifies as such a contract, moreover, this Court has already determined

that Hudson may sue AFGE as a third-party beneficiary for allegedly breaching it. Hudson, 318

F. Supp. 3d at 13–14.

But that is where Plaintiff runs out of gas. For while Count III of his Amended

Complaint mentions several violations of the AFGE Constitution, none involves bias at the

February 6, 2018, NEC meeting. To be sure, Count III alleges the participation of biased

members in other AFGE proceedings pertaining to Hudson, such as the February 2017

Committee of Investigation and August 2017 NEC proceedings. See Am. Compl., ¶¶ 168–69.

But the count contains no discussion whatsoever of bias with respect to the February 2018 NEC

meeting — which, it bears repeating, is the sole ground on which Plaintiff moves for summary

judgment. Count III’s other allegations are even further afield. In particular, Hudson claims that

6 AFGE violated its Constitution by: 1) allowing its General Counsel to “essentially bec[o]me the

prosecutor” at both NEC hearings; 2) “basing its decision on facts not in the administrative file”;

and 3) exceeding the scope of the original charge. See Am. Compl., ¶¶ 170–71, 175, 179. There

is not even a hint of alleged bias by, or even mention of, Bunn at the February 6, 2018, NEC

meeting. Because Hudson “cannot cure pleading defects” in summary-judgment briefing, his

Motion must be denied. U.S. SEC v. Brown, 878 F. Supp. 2d 109, 120 (D.D.C. 2012); see also

Taylor v. Mills, 892 F. Supp. 2d 124, 137 (D.D.C. 2012) (“[A] plaintiff is not permitted to

raise new claims at the summary judgment stage, where those claims were not pleaded in the

complaint.”); Navajo Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008)

(“[W]here, as here, the complaint does not include the necessary factual allegations to state a

claim, raising such claim in a summary judgment motion is insufficient to present the claim to

the district court.”).

In any event, even assuming Hudson had adequately alleged bias at the February 2018

NEC hearing in Count III of his Amended Complaint, his current Motion would still be doomed

for defeat. That is because he fails to establish — indeed, does not even attempt to establish —

which provision of its Constitution AFGE purportedly breached. This is no minor oversight.

After all, a basic element of any claim under Section 301 of the LMRA is establishing which part

of the relevant “contract[]” — here, the AFGE Constitution — the defendant “violat[ed].” 29

U.S.C. § 185(a); see also Stampone v. Walker, 722 F. App’x 246, 250 (3d Cir. 2018) (dismissing

claim brought under LMRA where plaintiff “did not claim that defendants’ conduct breached

any particular provision of” union constitution or bylaws); Rodonich v. House Wreckers Union

Local 95, 624 F. Supp. 678, 683–84 (S.D.N.Y. 1985), aff’d in part, rev’d in part, 817 F.2d 967

(2d Cir. 1987) (dismissing claim brought under LMRA where “[p]laintiffs point to no specific

7 provision in the [union] constitution . . . to support a Section 301 claim against [the union]”).

Here, the Court learned little as to how Defendant’s alleged conduct violated the AFGE

Constitution. Hudson contends that his “third party beneficiary rights guaranteed by the AFGE

National Constitution” entitle him to an “unbiased tribunal” for his disciplinary proceedings. See

Pl. Reply at 1–2. But the AFGE Constitution contains no such explicit guarantee. Nor does it

include a provision requiring “fairness” or “unbiased review” in Committee of Investigation or

NEC proceedings. While the document does provide that trial committees must conduct a “fair

and thorough trial of the charges” before them, no such trial committee was convened in

Hudson’s case. See Pl. MSJ, Exh. 3 (AFGE Constitution), Art. XIII, § 7(c). Plaintiff

acknowledges none of the above, instead cursorily alleging in his Amended Complaint that the

AFGE Constitution must “be interpreted to require fairness in all disciplinary matters” and that

“[t]he covenant of good faith and fair dealing is an implicit part of the Constitution.” Am.

Compl., ¶¶ 166–67. He does not reprise that argument here, and he never attempts to explain the

basis for any such tacit guarantee or its implications for his bias claim, despite his obligation as

movant “to demonstrate why summary judgment is warranted.” Winston & Strawn, LLP v.

McLean, 843 F.3d 503, 505 (D.C. Cir. 2016) (citation omitted); see also Faison v. Vance-Cooks,

896 F. Supp. 2d 37, 65 (D.D.C. 2012) (rejecting claim when plaintiff “provide[d] no meaningful

explanation” as to its basis). This conspicuous deficiency renders the Court unable to consider

the merits of Plaintiff’s claim, let alone grant judgment in his favor.

Finally, Plaintiff mounts a last-ditch effort in his reply brief to dramatically refashion his

summary-judgment bid. While his opening brief focuses entirely on alleged bias at the February

2018 NEC meeting, Hudson’s reply advances a host of new grounds on which he is purportedly

entitled to judgment. Specifically, he contends that AFGE 1) violated his constitutional due-

8 process rights; 2) dismissed him on January 12, 2018, without the requisite notice and

disciplinary proceedings; 3) exceeded its authority by “remov[ing]” him from office instead of

temporarily “suspend[ing]” him; and 4) denied him the right of full participation in meetings.

See Pl. Reply at 2, 4–6, 10–11, 12–15. None of these theories is raised — or even hinted at — in

Count III of Hudson’s Amended Complaint, the very count on which he himself insists his

Motion is based. Id. at 1, 8. Plaintiff cannot belatedly introduce these unpled claims in

summary-judgment briefing, see Taylor, 892 F. Supp. 2d at 137, let alone use his reply brief to

reinvent his quest for summary judgment by announcing entirely new arguments. See

Conservation Force v. Jewell, 160 F. Supp. 3d 194, 204 n.4 (D.D.C. 2016) (“New arguments

made in a reply brief are forfeited.”).

IV. Conclusion

For the foregoing reasons, the Court will deny Plaintiff’s Motion for Summary Judgment.

A separate Order so stating will issue this day.

/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: July 28, 2020