Eugene Hudson, Jr. v. American Federation of Government Employees

FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued March 6, 2025 Decided August 19, 2025
No. 24-7077
EUGENE HUDSON, JR.,
APPELLANT
v.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01867)
Harold C. Bone II argued the cause for appellant.
Elizabeth Clark Bone and Kimberly S. Estelle entered
appearances.
Elisabeth Oppenheimer argued the cause for appellee.
With her on the brief was Rushab B. Sanghvi.
Before: KATSAS, RAO, and GARCIA, Circuit Judges.
Opinion for the Court filed by Circuit Judge RAO.

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RAO, Circuit Judge: This appeal is the latest installment in
a “seemingly intractable feud” between Eugene Hudson and
the American Federation of Government Employees (“AFGE”
or “the Union”). Hudson v. AFGE, No. 17-cv-2094, 2020 WL
1275685, at *1 (D.D.C. Mar. 17, 2020). Hudson alleges the
Union twice removed him from his position as National
Secretary-Treasurer in retaliation for his protected speech—
namely, criticism of the Union’s leadership. He brought a
retaliation claim against AFGE under section 101(a)(2) of the
Labor-Management Reporting and Disclosure Act
(“LMRDA”), which protects union members’ rights to speech
and assembly. A jury concluded that the Union violated
Hudson’s rights when it removed him the first time, but not the
second. The district court denied Hudson’s subsequent motion
for a new trial.
Hudson’s central argument on appeal is that the district
court improperly instructed the jury as to the causation standard
and burden of proof. Hudson’s challenges fail. A retaliation
claim under LMRDA section 101(a)(2) requires but-for
causation, which the jury instructions correctly stated. And
Hudson invited any error as to the burden of proof instruction.
We therefore affirm.
I.
A.
Eugene Hudson has been involved in union politics for
decades. As a member of AFGE for over forty years, Hudson
rose through the ranks of the union leadership and was elected
National Secretary-Treasurer in 2012. Hudson set his sights
higher and in 2016 announced his campaign for AFGE
president.

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In his bid for president, Hudson made several
communications to leadership that gave rise to the controversy
in this case. In August 2016, Hudson sent a letter to AFGE local
officers announcing his candidacy and criticizing the Union’s
use of resources (“August Letter”). Hudson used a set of
Union-provided mailing labels to disseminate the letter. In
October, Hudson used a second set of labels that he purchased
from AFGE to send the same officers a postcard in which he
repeated his concerns about the misuse of union funds and
promised to “set out a plan to correct” such abuse. After
President Donald Trump was elected in November 2016,
Hudson asked his subordinate at AFGE to email a letter to local
presidents and treasurers—whose contact information Hudson
obtained from a Union database—expressing concerns about
what the new administration would mean for the Union
(“November Email”). The November Email purported to be
“From the Desk of National Secretary Treasurer Eugene
Hudson, Jr.” On AFGE’s view, the November Email “strongly
implied that Hudson was better positioned than the current
AFGE president to lead the Union through that turmoil.”
Hudson v. AFGE, No. 17-cv-1867, 2024 WL 1716646, at *1
(D.D.C. Apr. 22, 2024).
These communications spawned internal disciplinary
proceedings. In December 2016, charges were filed against
Hudson, alleging the communications violated several
provisions of the AFGE constitution. A committee investigated
and, based on the November Email, referred a charge of
“malfeasance of office” to the Union’s National Executive
Council. The Council found the November Email violated the
AFGE constitution’s prohibition on the use of Union resources
to promote a candidate for AFGE office. In August 2017, the
Council voted to remove Hudson from his position as
Secretary-Treasurer.

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Shortly after his initial removal, Hudson filed the present
suit. The district court granted a preliminary injunction
ordering Hudson’s reinstatement. While the preliminary
injunction was in place, the Union attempted a do-over.
Another committee investigated, and it also found reason to
believe Hudson had violated AFGE rules by using Union
resources to send the November Email and the August Letter.
In February 2018, the Council found Hudson violated AFGE
rules and again suspended him from office. Hudson amended
his complaint in response to his second removal.
B.
Hudson alleged his removals from the Secretary-Treasurer
position in August 2017 and February 2018 were unlawful. As
relevant to this appeal, Hudson claimed these removals
constituted retaliation for his exercise of protected speech in
violation of section 101(a)(2) of LMRDA. Pub. L. No. 86-257,
§ 101(a)(2), 73 Stat. 519, 522 (1959) (codified at 29 U.S.C.
§ 411(a)(2)). At trial, the parties focused on AFGE’s
motivation in removing Hudson. While Hudson alleged AFGE
removed him in retaliation for exposing financial misconduct,
the Union maintained it removed him because he violated the
AFGE constitution by using Union resources to send the
November Email in support of his personal campaign for
AFGE president.
The district court instructed the jury that for Hudson to
prevail on his LMRDA retaliation claim, he:

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must prove by a preponderance of the evidence
that [AFGE] removed him from his position as
National Secretary-Treasurer in August 2017
and again in February 2018 because of his
protected speech …. In other words, [Hudson]
must prove that [AFGE] would not have
removed him but for his [speech] …. In
considering whether [Hudson] has established
his case, you may consider a defense alleged by
[AFGE] — namely, that it suspended [Hudson]
for use of AFGE staff and resources in sending
the Trump email in November 2016. As
[Hudson] has the burden of proof, [AFGE] does
not have to persuade you of this by a
preponderance of the evidence.
The jury found AFGE violated LMRDA when it removed
Hudson in August 2017, but not in February 2018. It awarded
zero dollars in damages.
Hudson moved for a new trial under Federal Rule of Civil
Procedure 59(a). As relevant here, Hudson argued the jury
instructions incorrectly described the causation requirement
under LMRDA and misstated the burden of proof regarding the
Union’s potential defense. The district court rejected both
arguments. It held that Hudson had failed to preserve the issues
at trial because he did not object to the final instructions at the
charging conference. And neither part of the instructions
constituted plain error. It was “eminently reasonable to read the
LMRDA’s language as sticking to the basic but-for standard,”
and LMRDA’s “silence on the allocation of the burden of
proof … was a reason to place the burden on the plaintiff.”
Hudson, 2024 WL 1716646, at *5, *6 (cleaned up). The district
court denied Hudson’s motion for a new trial.

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Hudson timely appealed. We have jurisdiction under 28
U.S.C. § 1291.
II.
Hudson first argues that the but-for causation standard in
the jury instructions was erroneous. He contends that LMRDA
section 101(a)(2) requires a plaintiff to show only that his
protected conduct was a “substantial” or “motivating” factor in
a union’s decision to take an adverse action, not its but-for
cause.1
A.
Because Hudson failed to properly object below, we
review this challenge to the jury instructions for plain error.
Long v. Howard Univ., 550 F.3d 21, 25 (D.C. Cir. 2008).
Federal Rule of Civil Procedure 51 requires parties to object to
jury instructions by doing so “on the record, stating distinctly
the matter objected to and the grounds for the objection.” Fed.
R. Civ. P. 51(c)(1). Objections that are not preserved may be
reviewed for plain error. Fed. R. Civ. P. 51(d)(2). Despite
having requested the jury be instructed to apply a “motivating
factor” causation standard, Hudson failed to object to the
1 On appeal, Hudson also argues this court should dispense with a
causation standard altogether and instead evaluate whether a
violation of section 101(a)(2) has occurred by asking “whether an
objective union member would reasonably fear freely assembling
and speaking with other members.” This argument is entirely new on
appeal and therefore forfeited. Moreover, Hudson’s proposed
“objective unionist” standard is incompatible with the very notion of
a retaliation claim and conflicts with circuit precedent. To bring a
speech retaliation claim under section 101(a)(2), a plaintiff must
demonstrate the adverse action “is causally linked to the protected
speech.” Bastani v. AFGE, 70 F.4th 563, 566 (D.C. Cir. 2023).

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court’s proposed final instructions when presented with them
at the charging conference. Merely requesting instructions that
differ from the final instructions is insufficient to preserve an
objection. See Parker v. District of Columbia, 850 F.2d 708,
715 (D.C. Cir. 1988). Plain error review is therefore
appropriate.
Plain error review is narrow and “suited to correcting
obvious instances of injustice or misapplied law.” City of
Newport v. Fact Concerts, Inc., 453 U.S. 247, 256 (1981). We
reverse under the plain error standard only in “exceptional
circumstances.” Long, 550 F.3d at 26 (cleaned up). To prevail
on his jury instructions claim, Hudson must show (1) there is
an error; (2) that is plain; (3) that affects substantial rights; and
(4) that “seriously affect[s] the fairness, integrity, or public
reputation of judicial proceedings.” Muldrow ex rel. Estate of
Muldrow v. Re-Direct, Inc., 493 F.3d 160, 169 (D.C. Cir. 2007)
(cleaned up).
B.
There was no error in the district court’s instruction to
apply but-for causation. We reject Hudson’s call for a
“motivating factor” test and hold that but-for causation is the
correct standard for a retaliation claim under section 101(a)(2)
of LMRDA.
LMRDA section 101(a)(2) provides that union members
“shall have the right … to express any views, arguments, or
opinions” subject to the union’s “right … to adopt and enforce
reasonable rules as to the responsibility of every member
toward the organization.” 29 U.S.C. § 411(a)(2). “To establish
a prima facie free speech claim under Section 101(a)(2), … a
plaintiff must show that (1) she engaged in speech protected by
LMRDA; (2) she was subject to an adverse action; and (3) that
action is causally linked to the protected speech.” Bastani v.

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AFGE, 70 F.4th 563, 566 (D.C. Cir. 2023). Bastani did not
specify what type of causation was required. We now clarify
that a plaintiff must show a but-for causal link between his
protected speech and a union’s adverse action. This conclusion
follows from the text and context of section 101(a)(2), as well
as Supreme Court and circuit precedent.
“It is textbook tort law that a plaintiff seeking redress for
a defendant’s legal wrong typically must prove but-for
causation.” Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned
Media, 140 S. Ct. 1009, 1014 (2020) (cleaned up). The
“ancient and simple ‘but for’ common law causation test”
therefore “supplies the default or background rule against
which Congress is normally presumed to have legislated when
creating its own new causes of action.” Id. (cleaned up).
“[A]bsent an indication to the contrary in the statute itself,” a
statute will be read to impose a but-for causation requirement.
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347
(2013). Following this default rule, we have held that statutes
lacking any express causation standard nonetheless incorporate
a but-for causation requirement. See United States ex rel.
Cimino v. IBM Corp., 3 F.4th 412, 420 (D.C. Cir. 2021).
Nothing in the text of section 101(a)(2) displaces this
default rule of but-for causation or adopts a motivating factor
standard of causation. Section 101(a)(2) does not include an
explicit causation standard. It provides only that “[e]very
member” of a union “shall have the right to meet and assemble
freely with other members; and to express any views,
arguments, or opinions.” 29 U.S.C. § 411(a)(2). The statute’s
cause of action provision permits suit by “[a]ny person whose
rights” under LMRDA “have been infringed.” Id. § 412
(emphasis added). Reading these provisions together suggests
the ordinary rule that the exercise of speech rights must be the
but-for cause of the union’s adverse action. A union member’s

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speech rights are “infringed” when an adverse action is taken
because of his exercise of those rights, not when the adverse
action is taken for some unrelated reason. Cf. Hartman v.
Moore, 547 U.S. 250, 256 (2006) (explaining First Amendment
rights are violated when the government punishes a person
because of his protected speech). Even though LMRDA’s “text
does not expressly discuss causation, it is suggestive” of the
default but-for causation standard. Comcast Corp., 140 S. Ct.
at 1015.
Congress sometimes provides for a less stringent
“motivating factor” standard of causation, but this is the
exception not the rule. For instance, Title VII explicitly
authorizes discrimination claims where the plaintiff’s protected
status or activity was “a motivating factor” for an adverse
employment action. See 42 U.S.C. §§ 2000e-2(m), 2000e-
5(g)(2)(B). The Supreme Court has declined to import a
motivating factor standard into statutes that do not contain such
specific language. See Gross v. FBL Fin. Servs., Inc., 557 U.S.
167, 174–77 (2009) (holding Age Discrimination in
Employment Act requires a plaintiff to show age was the but-
for cause of the adverse employment action). Even other Title
VII provisions that do not include an explicit motivating factor
standard have been interpreted as requiring but-for causation.
See Nassar, 570 U.S. at 362 (holding Title VII retaliation
provision requires a plaintiff to “establish that his or her
protected activity was a but-for cause of the alleged adverse
action by the employer”). As the Supreme Court has
admonished, “[w]hen conducting statutory interpretation, we
must be careful not to apply rules applicable under one statute
to a different statute without careful and critical examination.”2
2 Applying this interpretive principle, we also reject Hudson’s
suggestion to read section 101(a)(2) “in pari materia with
§ 8(b)(1)(A) of the National Labor Relations Act,” Appellant Br. 21,
a provision that has been interpreted to require a “motivating factor”

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Gross, 557 U.S. at 174 (cleaned up). LMRDA does not create
liability where a union member’s speech was merely “a
motivating factor” for an adverse action, and we cannot read
this lower liability standard into the statute.
Furthermore, reading section 101(a)(2) to require but-for
causation is consistent with the Supreme Court’s decision in
Sheet Metal Workers’ International Association v. Lynn, which
held that an elected union officer’s removal from his position
violated section 101(a)(2) of LMRDA because he was removed
“as a direct result of his decision to express disagreement with”
union management. 488 U.S. 347, 354 (1989) (emphasis
added). While Lynn did not specify whether an adverse action
that is the “direct result” of protected speech is necessary, or
merely sufficient, to state a retaliation claim under section
101(a)(2), the Court’s language in Lynn is consistent with
reading LMRDA as imposing a but-for causation standard.
Following Lynn, other circuits have held that section
101(a)(2) requires a plaintiff to allege facts showing an adverse
action was taken against him as “a direct result” of his protected
speech.3 Casumpang v. Int’l Longshoremen’s and
test. See Consumers Energy Co., 347 NLRB 578, 579 (2006)
(applying Wright Line, 251 NLRB 1083 (1980)).
3 Several circuits have adopted something like a “substantial factor”
causation standard for section 101(a)(2). See Black v. Ryder/P.I.E.
Nationwide, Inc., 970 F.2d 1461, 1469 (6th Cir. 1992); Barger v.
United Brotherhood of Carpenters, 3 F.4th 254, 264 (6th Cir. 2021)
(applying Black); Bradford v. Textile Workers Local 1093, 563 F.2d
1138, 1143 (4th Cir. 1977); Petramale v. Local 17 of Laborers Int’l
Union, 736 F.2d 13, 18 (2d Cir. 1984). But these cases predate the
Supreme Court’s decisions in Nassar and Comcast, which stand for
the proposition that a statute’s text must clearly displace the default
rule of but-for causation. These earlier circuit court decisions are thus
of limited persuasive value.

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Warehousemen’s Union, Local 142, 269 F.3d 1042, 1058 (9th
Cir. 2001); see also McCarthy v. Int’l Ass’n of Machinists, No.
21-1673, 2021 WL 5766569, at *4 (3d Cir. 2021); Serafinn v.
Local 722, Int’l Brotherhood of Teamsters, 597 F.3d 908, 914
(7th Cir. 2010) (explaining “[a] mixed-motive theory of
liability is never proper in a suit brought under the LMRDA”).
This circuit implicitly endorsed a but-for causation requirement
for section 101(a)(2), reversing a district court’s grant of
summary judgment because “a reasonable jury could find” that
the union’s adverse action was taken “because of” the
plaintiff’s protected speech. Gilvin v. Fire, 259 F.3d 749, 759
(D.C. Cir. 2001) (emphasis added).
Finally, a but-for causation requirement is harmonious
with analogous First Amendment law. As Hudson emphasizes,
the language of section 101(a)(2) was intended “to restate a
principal First Amendment value—the right to speak one’s
mind without fear of reprisal.” United Steelworkers v.
Sadlowski, 457 U.S. 102, 111 (1982). As such, “First
Amendment principles may be helpful” in delineating the
scope of section 101(a)(2). Id. In the First Amendment context,
the Supreme Court has described the causation standard for
public employees alleging speech retaliation as “but-for
causation, without which the adverse action would not have
been taken.” Hartman, 547 U.S. at 260.
* * *
In sum, the best reading of LMRDA is that a plaintiff must
demonstrate but-for causation to make out a retaliation claim
under section 101(a)(2). Nothing in the text or structure of
LMRDA suggests a departure from this default standard.
Because the district court correctly instructed the jury,
Hudson’s claim of error fails.

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III.
Hudson next argues the jury instructions incorrectly stated
the burden of proof. Hudson did not preserve any objection to
the jury instructions. Undeterred, he now claims the
instructions improperly placed the burden of proof on him.
Hudson’s challenge to the jury instructions is barred by the
invited error doctrine. Under this doctrine, “a party may not
complain on appeal of errors that he himself invited or
provoked the district court to commit.” United States v. Wells,
519 U.S. 482, 488 (1997) (cleaned up). A challenge to a jury
instruction after the plaintiff “proposed the instruction’s
language” is “a textbook case of invited error.” United States
v. Benton, 98 F.4th 1119, 1130 (D.C. Cir. 2024) (cleaned up).
Hudson proposed the following jury instructions on the
burden of proof:
In considering whether Plaintiff has established
his case, you may consider the defense alleged
by Defendant — namely, that it removed
Plaintiff as National Secretary-Treasurer for
violating the union resources rule … and not for
reasons related to … [his speech] …. As
Plaintiff has the burden of proof, Defendant
does not have to persuade you of this by a
preponderance of the evidence.
The district court adopted the italicized language on the burden
of proof verbatim. Hudson cannot claim on appeal that the
standard he proposed was error.

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* * *
After six years of litigation, the feud between Hudson and
AFGE at last came to a close with the jury’s verdict. Hudson
has failed to demonstrate entitlement to a new trial, and
therefore we affirm the judgment of the district court.
So ordered.

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