                              UNPUBLISHED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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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-
