UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1363
JOSEPH LEE GIBSON,
Plaintiff - Appellant,
and
P. DAVID RICHARDSON,
Plaintiff,
versus
BOY SCOUTS OF AMERICA; JOHN DOES, No. 1-7;
NATIONAL CAPITAL AREA COUNCIL, BOY SCOUTS OF
AMERICA; RICHARD ROES, No. 1-7,
Defendants - Appellees.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Gerald Bruce Lee, District
Judge. (CA-04-1040-1)
Argued: November 30, 2005 Decided: January 12, 2006
Before NIEMEYER, MOTZ, and TRAXLER, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Raymond Donald Battocchi, GABELER, BATTOCCHI, GRIGGS &
POWELL, P.L.L.C., McLean, Virginia, for Appellant. John David
McGavin, TRICHILO, BANCROFT, MCGAVIN, HORVATH & JUDKINS, Fairfax,
Virginia, for Appellees. ON BRIEF: Melissa H. Katz, TRICHILO,
BANCROFT, MCGAVIN, HORVATH & JUDKINS, Fairfax, Virginia, for
Appellees.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
-2-
PER CURIAM:
Joseph L. Gibson brought this diversity tort action against
the Boy Scouts of America (“BSA” or “Boy Scouts”) and its local
council, the National Capital Area Council, Boy Scouts of America
(“NCAC”), seeking declaratory, injunctive, and compensatory relief,
as well as punitive damages and attorneys fees, for alleged
violations of the right to fair procedure, ultra vires actions, and
defamation. The district court granted summary judgment to Gibson
on his fair procedure claim and awarded him injunctive relief, but
dismissed or granted summary judgment to BSA and NCAC on all other
claims. Only Gibson appeals. We affirm.
I.
Joseph Gibson’s relationship with the Scouts spanned over
fifty years, beginning when he himself served as a Boy Scout from
1951 to 1962. During his time as a youth Scout, Gibson received
many organizational honors, including earning the rank of Eagle
Scout and being elected to BSA’s highest honor society, Order of
the Arrow. When his son joined the Scouts in 1996, Gibson became
an adult member of BSA, and in 1998, he became the volunteer
Scoutmaster of his son’s Troop, Troop 869, located in McLean,
Virginia. In July 2001, however, BSA expelled Gibson after he
-3-
flip-kicked1 a youth at the National Boy Scouts Jamboree. Gibson
appealed the decision to the Northeast Region and it reinstated him
as a member in December 2001. He subsequently continued to serve
as Scoutmaster of Troop 869.
Beginning in the summer and fall of 2002, parents of Scouts in
Troop 869 started to raise complaints about Gibson’s leadership.
In response, District Executive, Brian Fasci, set up a series of
meetings with the concerned parents, as well as with the members of
the local committee, including Gibson. Despite these meetings, in
January 2003, Fasci received an additional complaint from a parent
expressing concern with Gibson’s “lack of kindness and humanity.”
At that point, Fasci brought the problem to the attention of the
Standards for Membership Committee. He also met with two members
of the local committee and two members of the community to address
these parental concerns, and expressed his view that Gibson was
“unfit to serve as a Scoutmaster or be in Scouts.”
Aside from the discussions at the meetings he attended, there
is no evidence that Gibson was aware that his membership was under
review until February 7, 2003, when he received a letter informing
him that his registration in the Boy Scouts had been revoked.
Gibson asked the BSA the basis for his revocation and received a
response on March 10, 2003. Gibson appealed the revocation to the
1
As described by the district court, Gibson “flip-kicked” by
“swinging his lower leg from the knee to the side to contact the
youngster on the buttocks with the top of his moccasin.”
-4-
Northeast Region, and then to the national headquarters of the BSA.
During the revocation and appeal, BSA did not afford Gibson a
hearing to defend himself against the charges. On December 17,
2003, BSA denied Gibson’s appeal.
A month later, Gibson’s counsel contacted BSA to inquire as to
the reasons for its revocation decision. He spoke with David Park,
counsel to BSA, and “told him that [Gibson’s counsel] was
essentially at a loss to understand the action that the BSA had
taken” against Gibson. Park responded by explaining “that, often,
individuals whose BSA registrations are revoke [sic] ‘aren’t
candid’ with their counsel.”
The following month, in February 2004, Gibson filed a
diversity tort action against BSA and NCAC in federal court in the
District of Columbia alleging violations of the common law right to
fair procedure, ultra vires conduct, and defamation. After the
defendants moved for a change of venue, the case was transferred to
the Eastern District of Virginia. Applying Virginia law,2 in four
2
Gibson argues that the substantive law of the District of
Columbia, rather than Virginia, applies here. Because the suit was
initially filed in the District of Columbia, the choice of law
rules of the District of Columbia govern. Ferens v. John Deere,
Co., 494 U.S. 516, 523 (1990). These rules provide that the
substantive law of the forum with the greatest “governmental
interest” controls. See, e.g., Kaiser-Georgetown Comm. Health
Plan, Inc. v. Stutsman, 491 A.2d 502, 509 (D.C. 1985). In
determining this, a court must examine “(a) the place where the
injury occurred, (b) the place where the conduct causing the injury
occurred, (c) the domicil, residence, nationality, place of
incorporation and place of business of the parties, and (d) the
place where the relationship, if any, between the parties is
-5-
separate opinions, the district court granted summary judgment to
Gibson on his fair procedure claim, and summary judgment to BSA and
NCAC on the ultra vires claims, and the claims for reinstatement,
compensatory and punitive damages, and attorney’s fees, and
dismissed Gibson’s defamation claims.
II.
First, Gibson maintains that he is entitled to compensatory
and punitive damages, as well as attorneys fees, for his success on
his “wrongful expulsion” claim.
As an initial matter, we note that this contention
mischaracterizes the sole claim on which Gibson prevailed. Gibson
only succeeded on his state law fair procedure claim. The district
court ultimately granted summary judgment to BSA and NCAC on the
ultra vires claim, finding that “no genuine dispute of material
fact exists that Defendant’s revocation of Plaintiff’s membership
in the scouting movement conformed with their bylaws.” Gibson did
not appeal the ultra vires ruling. Thus, the only claim for which
centered.” Restatement (Second) of Conflicts of Laws § 145(2)
(1971). It is undisputed that Gibson is a resident of Virginia,
the alleged injuries occurred in Virginia, and the relationship
between the parties was centered in Virginia where Troop 869 was
located. Although BSA and NCAC are incorporated in the District
and Gibson is employed there, these factors are not sufficient to
overcome the strong interest that Virginia has in this case.
Therefore, we agree with the district court that the substantive
law of Virginia applies to Gibson’s claims.
-6-
he can allege a right to damages and attorneys fees is his fair
procedure claim.
Under Virginia law, Gibson can recover compensatory damages
for injuries “proximately caused by another party’s tortious
conduct.” 7-Eleven, Inc. v. Dept. of Envtl. Quality, 590 S.E.2d
84, 92 (Va. App. 2003). Gibson’s claimed damages include un-
reimbursed expenses from his BSA activities, a donation he made for
a BSA award, the cost of the time he spent pursuing his fair
procedure claim, and damages for emotional and reputational harms
allegedly suffered.3 Clearly, no tortious conduct of BSA
proximately caused the un-reimbursed expenses or the award
donation, and we find it improper to award compensatory damages for
the time Gibson spent pursuing this claim. See cf. 6 Am. Jur. 2d
Associations and Clubs § 42 (2005). As for Gibson’s alleged
emotional and reputational harms, these were caused not by the
violation of Gibson’s fair procedure rights -- his lack of notice
and a hearing -- but by the fact of his ultimate expulsion.
3
Specifically, Gibson claims the following: $37,900 for time
he spent on his “wrongful expulsion” claim; $158.61 for expenses
associated with this claim; $502.25 for mileage; $400 for un-
reimbursed Order of the Arrow expenses; $124.63 for other
unspecified un-reimbursed expenses; $1,000 for the James E. West
Award; $163.01 for court costs; $150 for the filing fee; $13.01 for
the cost of service; and an unspecified amount in attorney’s fees.
J.A. 376. He also claims damages for “denied participation in
Scouting activities and association with Scouts,” for
“[e]mbarrassment, humiliation, damage to reputation and esteem in
the communities of McLean, Trinity United Methodist Church, and
McLean, Virginia,” and “[d]amage to professional reputation and
diminution in mobility.”
-7-
Indeed, in discussing the matter, Gibson explains that his
“expulsion from BSA membership is . . . a blot of [sic] my record
and reputation that hinders my mobility as an attorney.” No where
does he contend that the procedural harm he suffered damaged his
reputation or professional mobility or led to any emotional
distress. In sum, then, Gibson proffers no evidence that violation
of his fair procedure rights resulted in the alleged compensatory
damages.
We also reject Gibson’s claim that at the very least, he is
entitled to nominal damages for his “deprivation of a fundamental
right.” Brief of Appellant at 23. Again, this characterization
misses the mark. Gibson’s fair procedure claim was a common law
tort claim –- he did not allege any constitutional or civil rights
deprivation. His argument therefore lacks merit. Nominal damages
may be required when “plaintiff’s civil rights are found to have
been violated” on the theory that such an award allows courts to
“provide some marginal vindication for a constitutional violation.”
Park, 250 F.3d at 854 (emphasis added). Nominal damages may be
appropriate in some common law tort cases in which vindication of
a legal right is not otherwise available, Town & Country
Properties, Inc. v. Riggins, 457 S.E.2d 356, 365 (1995). Virginia
courts, however, have awarded injunctive relief rather than nominal
damages to vindicate violations of the common law right to fair
procedure. See, e.g., Gottlieb v. Economy Stores, Inc., 102 S.E.2d
-8-
345, 352 (Va. 1958) (approving the injunctive remedy provided for
the fair procedure violation); see also Berrien v. Pollitzer, 165
F.2d 21, 23 (D.C. Cir. 1947) (allowing only relief in equity for
fair procedure violation).
Moreover, because Gibson is entitled to neither compensatory
nor nominal damages for his fair procedure claim, he cannot recover
punitive damages. See Valley Acceptance Corp. v. Glasby, 337
S.E.2d 291, 297 (Va. 1985) (stating that under Virginia law,
punitive damages are not proper absent an award of compensatory or
nominal damages).
Nor is Gibson entitled to attorney’s fees. Although there are
recognized exceptions to the traditional American rule requiring
each party to pay its own fees, see Hall v. Cole, 412 U.S. 1, 4
(1973),4 an award of fees under these exceptions is within the
court’s discretion. Fees are not mandatory, but rather are
permitted “when the interests of justice so require.” Id. at 5.
Accord, Prospect Dev’t Co. v. Bershader, 515 S.E.2d 291, 300-01
(Va. 1999). Given Gibson’s very limited success, we cannot hold
that the district court abused its discretion in abiding by the
4
The specific exception that Gibson relies on allows
attorney’s fees where “the plaintiff’s successful litigation
confers ‘a substantial benefit o the members of an ascertainable
class, and where the court’s jurisdiction over the suit makes
possible an award that will operate to spread the costs
proportionately among them.” Hall, 412 U.S. at 5-7. He claims
that because he “succeeded in winning a significant benefit for all
members of the BSA, youth and adults,” attorney’s fees are
warranted. Brief of Appellant at 29.
-9-
traditional American rule and refusing to award Gibson attorney’s
fees.
III.
Gibson also argues that the injunctive remedy ordered by the
district court -- a retroactive hearing -- does not adequately
redress his injuries. He maintains that he should instead be
reinstated as a member of BSA. We review the district court’s
award of injunctive relief for abuse of discretion. Lone Star
Steakhouse & Saloon, Inc. v. Alpha of Virginia, Inc., 43 F.3d 922,
939 (4th Cir. 1995).
In crafting its injunctive remedy, the district court
considered what relief would appropriately vindicate Gibson’s
denial of fair procedure while keeping in mind the court’s limited
authority to review internal decisions of social organizations.
Relying on Gottlieb v. Economy Stores, Inc., 102 S.E.2d 345, 352
(Va. 1958), it noted that under Virginia law, courts reviewing an
expulsion from a corporation are limited to examining whether the
organization violated the plaintiff’s right to fair procedure, and
that “where there is evidence tending to support the conclusion [of
the organization], the courts will not interfere with the merits of
the decision.” The district court determined that, “in light of
[BSA’s] continued desire to revoke Mr. Gibson’s membership,” it
could not order reinstatement because this would require the court
-10-
to “substitute itself for the membership of the Boy Scouts to
determine whether Mr. Gibson is fit for membership.” Given BSA’s
decision to revoke Gibson’s membership on the basis of “their
membership standards and information not before the Court,” and
“[g]iven the nature of the Boy Scouts membership involving parents,
children, and church members,” the court refused to reinstate
Gibson. Instead, the court fashioned a remedy that required BSA to
provide Gibson with notice and the opportunity to be heard at a
hearing -- the very procedure Gibson claimed he was unjustly
denied. This careful consideration by the district court does not
constitute an abuse of discretion.
IV.
Gibson’s final arguments concern two allegedly defamatory
statements made about him by BSA officials, one in which Brian
Fasci stated that Gibson was “unfit to serve as a Scoutmaster or be
in Scouts,” and one in which BSA’s counsel, David Park, stated that
Gibson was not “candid with [his own] counsel” about the incidents
leading to the revocation of his membership. Gibson contends that
the district court erred in dismissing these claims. Because
neither statement is defamatory, we affirm the district court’s
dismissal.
The Supreme Court has explained that although there is no
“wholesale defamation exception” for opinions, “a statement of
-11-
opinion relating to matters of public concern which does not
contain a provably false factual connotation will receive full
constitutional protection.” Milkovich v. Lorrain Journal Co., 497
U.S. 1, 18-20 (1990). Also fully protected are “statements that
cannot ‘reasonably [be] interpreted as stating actual facts’ about
an individual.” Id. at 20 (quoting Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 50 (1988)). See also Yeagle v. Collegiate
Times, 497 S.E.2d 136, 138 (Va. 1998) (explaining that “to be
actionable, the alleged defamatory statements must still be
understood to convey a false representation of fact”); Williams v.
Garraghty, 455 S.E.2d 209, 215 (Va. 1995) (“pure expressions of
opinion” are fully protected while “[f]actual statements made to
support or justify an opinion” may be actionable as defamation).
In dismissing Gibson’s first defamation claim, the district
court found the statement that Gibson’s was “unfit” to be a
Scoutmaster to be one of “pure opinion,” constituting “merely the
expression of the speaker’s opinion,” and thus unable to support a
claim for defamation. We agree. Had Brian Fasci included the
facts giving rise to his statement that Gibson was “unfit,” the
statement might be provable as true or false and thus might supply
the basis for a defamation claim. See Williams, 455 S.E.2d at 215.
However, absent discernable criteria against which to measure
“fitness,” the mere generalized statement that someone is unfit for
a position in a volunteer association, standing alone, does not
-12-
imply the existence of facts necessary to support a defamation
claim. See Swengler, 993 F.2d at 1071. Rather it simply expresses
the subjective opinion of the speaker.5
Similarly, Gibson’s second defamation claim -- his contention
that BSA’s counsel defamed him by suggesting that Gibson was not
being candid with his own counsel concerning the reasons for his
membership revocation –- also involves nothing more than subjective
opinion. Although defamation may be established by inference in
some cases, see Carwile, 82 S.E.2d at 592, the statement here is
one of opinion based on the BSA attorney’s experiences and
expresses speculation rather than fact. See Chaves v. Johnson, 335
S.E.2d 97, 101-02 (Va. 1985) (stating that “[p]ure expressions of
opinion, not amounting to ‘fighting words,’ cannot form the basis
of an action for defamation”). Accord Fuste v. Riverside
Healthcare Ass’n, Inc., 575 S.E.2d 858, 861 (Va. 2003). Even if
provable as true or false, the truth or veracity of this statement
says nothing about Gibson’s own forthrightness. In fact, Parks had
no basis of knowledge as to what Gibson told his attorney, nor was
he “privy” to the reasons supporting BSA’s ultimate decision.
5
Gibson’s suggestion that “fitness” can be “proved true or
false by referring to BSA’s published policies on safety and other
matters” is unpersuasive. Brief of Appellant at 35. These BSA
policies do not constitute job specifications defining what is
necessary to be a Scoutmaster. Rather, their very generality
demonstrates the lack of measurable standards in this case.
-13-
Thus, this statement was one of speculation and opinion, and does
not support a claim for defamation.6
The district court did not err in dismissing the defamation
claims.
V.
For the foregoing reasons, the opinion of the district court
is
AFFIRMED.
6
In dismissing this claim, the district court held that the
communication was “absolutely privileged” because it occurred
between two lawyers and concerned “the conduct of a client of one
of the lawyers.” Given that no litigation was yet pending between
Gibson and BSA at the time the statement was made, we cannot agree
that the statement at issue is entitled to an absolute privilege.
See Lindeman v. Lesnick, 604 S.E.2d 55, 58 (Va. 2004)
-14-