Opinion
Civil Action No. 04-1040.
March 3, 2005.
Joseph Lee Gibson, McLean, VA, pro se.
Raymond Donald Battocchi, Gabeler Battocchi Griggs Powell PLLC, McLean, VA, for plaintiff.
P. David Richardson, McLean, VA, pro se.
John David McGavin, Trichilo Bancroft McGavin Horvath Judkins PC, Fairfax, VA, for defendants.
MEMORANDUM OPINION
THIS MATTER is before the Court on Defendants Boy Scouts of America ("BSA") and National Capital Area Council's ("NCAC") (collectively, "Defendants") Motion for Partial Summary Judgment on Count II of Plaintiff Joseph Lee Gibson's ("Mr. Gibson," "Plaintiff") Second Amended Complaint, Revised, as well as on Mr. Gibson's claims for compensatory and punitive damages as to both Counts I and II, and Mr. Gibson's claim for attorneys fees. This case concerns the revocation of Mr. Gibson's membership in the Boy Scouts of America by BSA and NCAC, depriving him of his position as Scoutmaster for Troop 869, without notice that his membership was under consideration for revocation or of the basis for the revocation, or opportunity to reply to charges against him. The questions before the Court are (1) whether a genuine dispute of material fact exists for trial that the defendants acted outside the scope of their authority in revoking Mr. Gibson's membership in the Boy Scouts, rendering him ineligible to serve as Scoutmaster of Troop 869, and whether defendants are entitled to judgment as a matter of law as to Mr. Gibson's ultra vires claim, (2) whether Mr. Gibson is entitled to compensatory and punitive damages for Counts I and II of his complaint, and (3) whether he is entitled to attorney's fees. The Court holds that no genuine dispute of material fact exists for trial as to the ultra vires count and that Defendants are entitled to judgment as a matter of law on this count. Further, the Court grants Defendants' motion for summary judgment on Mr. Gibson's compensatory and punitive damages claims as to Count I because there is no genuine dispute of material fact for trial regarding Mr. Gibson's compensatory and punitive damages, and he is entitled to none as a matter of law. Finally, Mr. Gibson will receive no attorney's fees because of the Commonwealth of Virginia's adherence to the "American Rule" and the absence of any statutory or contractual provision requiring the awarding of attorney's fees in this context. See Lannon v. Lee Conner Realty Corp., 385 S.E.2d 380, 383 (Va. 1989).
I. BACKGROUND
Mr. Joseph Gibson became Scoutmaster for Troop 869, sponsored by Trinity United Methodist Church ("the Church"), in 1998. The Boy Scouts revoked Mr. Gibson's Boy Scout membership on February 3, 2003 without any notice to Mr. Gibson that the Boy Scouts had any reasons to consider revoking his membership.
Mr. Gibson had extensive experience with the Scouting Movement as he was himself a boy scout from 1951 to 1962, earned the rank of Eagle Scout, was elected to the BSA's honor society, the Order of the Arrow, and to the position of Chief of the Lodge of the Order, and received the Order's highest honor, the Vigil. From 1957 to 1961, Mr. Gibson served as waterfront staff of the boy scout summer camp and as Waterfront Director.
In 1996, when his son joined Boy Scout Troop 128 in McLean, Virginia, Mr. Gibson volunteered as an Assistant Scoutmaster and registered as an adult member of the scouting movement. The leadership of Troop 869, including Reverend James C. Sprouse ("Rev. Sprouse"), the pastor of the Church, and John C. Kim, PhD, ("Dr. Kim"), the Chartered Organization Representative to Troop 869, accepted Mr. Gibson's offer to serve as Scoutmaster. Mr. Gibson devoted a substantial amount of time and energy to invigorating Troop 869, focusing primarily on aquatic activities such as rafting and canoeing.
In July 2001, while at the National Boy Scout Jamboree with the Troop, Mr. Gibson "flip-kicked" a youth, swinging his lower leg from the knee to the side to contact the youngster on the buttocks with the top of his moccasin. While Mr. Gibson describes this as a "thoughtless act of horseplay," Defendants characterize it as "kick[ing] this scout in an attempt to control the scout's action." Compare Defs.' Response Pl.'s Undisp. Facts ¶ 10 with Mem. P. A. Supp. Pl.'s Mot. Partial Summ. J. ¶ 10. In response to this action, on July 25, 2001, NCAC expelled Mr. Gibson from membership in the scouting movement. Mr. Gibson appealed the expulsion to BSA's Northeast Region and was reinstated as a member of the BSA on December 11, 2001. The Northeast Region Review Committee and the National Office of the BSA approved Mr. Gibson's reinstatement.
On May 17, 2002, five months after his reinstatement as a Boy Scout member, Peter Petesch, a member of the Executive Board, Council Attorney and Chairman of the Council's standards of Membership Committee of the NCAC wrote to the Northeast Region raising concerns that "established policy was not adhered to in the case of Mr. Joseph Gibson." Defs.' Responses to Pl.'s Undisp. Facts Ex. 4F. Mr. Petesch writes that the decision to suspend Mr. Gibson's membership was made by the Scout Executive of the NCAC, Ron Carroll, "only after careful investigation," and that the regional committee's decision "might have been made prematurely" since it did not consult with the local council level making the original decision prior to rendering a ruling. Id. Next, Mr. Petesch requests that the Northeast Region reconsider its decision. Id. In a May 22, 2002 letter, Mr. Petesch again requests that the Northeast Region "revisit" its decision to reinstate Mr. Gibson, stating that "we feel strongly that the Regional committee did not have full benefit of all the information and facts related to this case at the time they made their decision." Defs.' Responses to Pl.'s Undisp. Facts Ex. 4G. At no time did Defendants notify Mr. Gibson that his membership was under review. Id. ¶ 14.
In the summer and fall of 2002, Mr. Brian Fasci ("Mr. Fasci"), the paid Scouting professional for the local Scout District with the title of District Executive, began receiving communications from concerned parents regarding Mr. Gibson's style of leadership as Scoutmaster. Aff. Brian Fasci ¶¶ 6-32. As a result, Mr. Fasci set up meetings with parents to investigate their concerns about Mr. Gibson's interaction with scouts and manner of dealing with parents, and in November 2002, met with Dr. Kim, Mr. Gibson, Mr. Bob Reif, the Troop Committee chair, and Mr. Matthew Budz, Field Director for the NCAC Virginia Central Service Area, to report on these concerns. In an email dated November 12, 2002, responding to Mr. Reif's contention that Mr. Fasci was trying to "oust" Mr. Gibson as Scoutmaster and himself as Troop Committee Chair, Mr. Fasci responded, "first off let me assure you that I nor no other persons from the Boy Scouts of America are trying [ sic] oust Joe Gibson as Scoutmaster nor you as committee chairman." Pl.'s Ex. 6. In January 2003, Mr. Fasci continued to receive complaints from parents and ultimately contacted Don Reinhardt, advisor to the Standards of Membership Committee; his affidavit states that Mr. Fasci "was unaware of what actions Mr. Reinhardt took" following their communication. Aff. Brian Fasci ¶ 33.
The Court notes that none of the complaints reported to the Court involved any allegations of sex abuse by Mr. Gibson.
On January 27, 2003, Mr. Fasci met with Rev. Sprouse, Dr. Kim and two other members of the church community. According to Dr. Kim's affidavit, Mr. Fasci informed the group that NCAC would not renew the annual charter of Troop 869 if Mr. Gibson were to remain the Scoutmaster. Aff. John C. Kim ¶ 5. Mr. Fasci, on the other hand, avers that when asked whether BSA would sponsor Mr. Gibson as a Scoutmaster, he responded that the Charter Organization must decide who is Scoutmaster. Aff. Brian Fasci ¶ 34. Furthermore, he avers that he was asked whether he would personally recommend Mr. Gibson as a Scoutmaster, and that his reply was "no." Id. No evidence in the record before the Court shows that Mr. Gibson was made aware that his membership in the Boy Scouts was under consideration at any point following his reinstatement in December 2001.
On February 7, 2003, Mr. Gibson received a letter dated February 3, 2003 from NCAC stating that his membership registration in the scouting movement had been revoked. No basis for the membership revocation is provided in the letter, although the letter states that Mr. Gibson can appeal the decision by sending a letter to the Regional Director within sixty days "explaining your version of the facts." Pl.'s Ex. 5J.
Mr. Gibson appealed the revocation of his membership to the Northeast Region and then to the BSA national headquarters in Texas. On February 7, 2003, Mr. Gibson sent the Northeast Region a letter requesting information about the charges upon which his expulsion was based. He received a response to this letter on March 10, 2003, over a month after his request for information. In the meantime, on March 8, 2003, he had filed a report in support of his appeal. The March 10, 2003 letter from the Assistant Regional Director states:
My understanding of the matter is as follows: 1. You have disregarded the unit committee governance policies of BSA. 2. Your actions have been disruptive to the proper operation of the troop. 3. Your actions have improperly caused parents and youth to leave the troop. 4. You permitted improper youth conduct to occur at troop activities.
Def.'s Ex. 4B. There is no evidence in the record before the Court that Mr. Gibson was provided any opportunity to appear in person or by representative during his appeal before the Northeast Region or to question the witnesses to his conduct, that he knew the date or place of any relevant hearing, or that he was ever informed of the identity of the person or persons who reviewed his appeal.
On April 7, 2003, Ron Carroll, NCAC Scout Executive sent a letter to the Regional Leadership Standards Committee indicating that he did not support reinstatement of Mr. Gibson's membership because "Joe Gibson is NOT fit and does not meet the high standards of leadership of the BSA." Pl.'s Ex. 5N (emphasis in original). On April 15, 2003, Mr. Petesch wrote to Mr. Ronald Rogers, Assistant Regional Director of the Northeast Region stating that the NCAC's Standards of Membership Committee unanimously endorsed the decision to revoke Mr. Gibson's registration with the Boy Scouts. Pl.'s Ex. 5O. On April 29, 2003, the BSA Northeast Region sent Mr. Gibson a letter stating that it had denied his appeal. Pl.'s Ex. 5Q. No reasoning for the revocation of Mr. Gibson's membership was provided to him.
On May 8, 2003, Mr. Gibson appealed the revocation of membership to the BSA national headquarters in Texas. The record before the Court contains no evidence that Mr. Gibson was notified of the date or place of the hearing, given an opportunity to appear in person or by representative, provided with information about the persons who had complained about him or a chance to question witnesses against him, or provided with any documentation against him upon which the revocation of membership was based. On December 17, 2003, the national headquarters of the BSA denied Mr. Gibson's appeal.
Mr. Gibson filed his initial complaint against the BSA and the NCAC in February 2004 in United States District Court for the District of Columbia. The action was subsequently transferred to this Court. Mr. Gibson's Second Amended Complaint, Revised alleges three counts: 1) violation of the right of fair procedure, 2) ultra vires action, and 3) defamation. The Court dismissed Count III of the complaint by Order dated January 10, 2005, and granted summary judgment for Mr. Gibson on January 11, 2005 as to Count I of the complaint, but not as to Count II. In light of the Court's January 11, 2005 ruling, Defendants now seek summary judgment on the ultra vires claim, as well as on Mr. Gibson's claims for compensatory and punitive damages claimed with respect to Counts I and II, and Mr. Gibson's claim for attorney's fees.
II. DISCUSSION
A. Standard of Review
Under Rule 56(c), the Court must grant summary judgment if the moving party demonstrates that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c). In reviewing a motion for summary judgment, the Court views the facts in a light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1996). Once a motion for summary judgment is properly made and supported, the opposing party has the burden of showing that a genuine dispute exists. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. Anderson, 477 U.S. at 248. "Rule 56(e) requires the nonmoving party to go beyond the pleadings and by [his] own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
B. Analysis
Ultra Vires Action
The Court grants Defendants' motion for summary judgment on the ultra vires count because no genuine dispute of material fact exists that Defendants' revocation of Plaintiff's membership in the scouting movement conformed with their bylaws, and Defendants are entitled to judgment as a matter of law. Under Virginia law, corporations or associations may not act contrary to or beyond the scope of their own rules, policies or procedures. See e.g., Unit Owners Assoc. v. Gillman, 292 S.E.2d 378 (Va. 1982) (holding that condominium owners' association lacked authority to impose fines on member-unit owners). In Gottlieb v. Economy Stores, Inc., 102 S.E.2d 345 (Va. 1958), the Virginia Supreme Court cited the Second Circuit Court of Appeals' decision in Stevenson v. Holstein-Friesian Assoc. of America, 30 F.2d 627 (2d Cir. 1929) to specify into what matters a court may inquire when a person's membership in an association is revoked, including whether the association's decision-making body acts according to its own rules:
Where an association sets up a private tribunal to determine whether a member has forfeited his rights of membership by the violation of some rule of the corporation, judicial review is of limited scope. In general, it may be said that courts will interfere to keep such a tribunal within its jurisdiction, as prescribed by the rules of the association, and will inquire whether the action taken was in bad faith, or in violation of the laws of the land, but will not investigate the merits of the tribunal's decision.Id. at 353 (citing Stevenson, 30 F.2d at 627).
Defendants' own rules explicitly provide them with the authority to revoke the membership of any of their members. As described in their "Procedures for Maintaining Standards of Membership," the BSA bylaws permit the BSA to develop and enforce its membership standards. Def.'s Ex. 1 at 6 ("Individuals deemed unsuitable for BSA membership will be removed from membership if already registered or denied registration if not registered"). As Plaintiff points out, however, Chartering Organizations, such as the Church in this action, organize the troop, and in conjunction with other adults composing the Troop Committee, select adults to serve in leadership positions, such as the Scoutmaster. According to the "Troop Committee Guidebook," a troop is "owned" by a Chartered Organization. Pl.'s Ex. 8 at 7. The "Handbook for Scout Leaders" states that the Troop Committee's responsibilities include "select[ing] quality leaders for the troop," and identifies this as "the most important responsibility of a troop committee." Pl.'s Ex. 9 at 161. Plaintiff concedes, however, whenever a Scoutmaster's membership is revoked, the Scoutmaster will become ineligible to serve as Scoutmaster. Furthermore, just because the Troop Committee and Chartered Organization are charged with selecting a Scoutmaster, nowhere in the documents provided to the Court does it say that Defendants may not consider how an adult manages the affairs of a boy scout troop in deciding whether to revoke his or her membership or whether he or she meets the membership qualifications Defendants have established. Finally, Plaintiff's argument that Defendants acted in "bad faith" because they revoked Mr. Gibson's membership without fully informing him of the charges against him, thereby acting ultra vires, is not analogous to this case. The Fourth Circuit case he cites in support of this proposition is inapposite because it involves the due process rights of a union member and violations of the Labor-Management Reporting and Disclosure Act, 29, U.S.C. § 411 et seq. Eisman v. Baltimore Regional Joint Brotherhood of Amalgamated Clothing Workers, 496 F.2d 1313 (4th Cir. 1974). The Boy Scouts is not governed by the same statutory framework, and due process rights under the federal constitution are not at issue in this case. Consequently, because the Court finds that Defendants did not act beyond the scope of their authority as delineated by their own rules in revoking Mr. Gibson's membership, the Court grants Defendants motion for summary judgment as to the ultra vires count.
Compensatory and Punitive Damages as to Count I
The Court grants Defendants' motion for summary judgment on compensatory and punitive damages for the fair procedure count. Under Virginia law, "the plaintiff must not only show legal injury, but also a perceptible resultant damage with reasonable certainty." Park v. Shiflett, 250 F.3d 843, 853 (4th Cir. 2001) (citations omitted). In an interrogatory request, Mr. Gibson was asked to provide "full and complete itemization of your entire claims for special damages for medical expenses, attorney's fees, or other claims as you shall allege, listing the particular item or element claims." Mr. Gibson responded:
1. Cost of redressing my wrongful expulsion from BSA Hours (785.00) at $50.00 per hour 37,900 Expenses, out-of-pocket 158.61 Mileage (1,435) at 35 cents per mile 502.25
2. Order of the Arrow expenses, reimbursement denied by NCAC 400.00
3. Other un-reimbursed expenses 124.63
4. James E. West Award 1000.00
5. Court Cost 163.00 Filing fee 150.00 Cost of service 13.01
6. Attorneys' fees and expenses Ray D. Battocchi P. David Richardson
7. Days denied participation in Scouting activities and association with Scouts, particularly of Troop 869: from February 7, 2003, to date . . .
8. Embarrassment, humiliation, damage to reputation and esteem in the communities of McLean, Trinity United Methodist Church, and McLean, Virginia.
9. Damage to professional reputation and diminution in mobility."
Pl.'s Suppl. Response Interrogs at 3-4. Mr. Gibson also attached a chart detailing what he did during the 785 hours he spent working on his case. In addition, he provided a list of the items included in the "un-reimbursed expenses"; these included, for example, reprints of photographs associated with the Chain Bridge District of the Boy Scouts.
The Court holds that Mr. Gibson is entitled to no compensatory or punitive damages. First, Mr. Gibson is entitled to no compensatory damages that are not proximately caused by the violation of his right of fair procedure. See 7-Eleven, Inc. v. Dep't of Envt'l Quality, 590 S.E.2d 84, 92 (Va. 2003) ("The principle is well settled in Virginia that a party may recover for damages proximately caused by another party's tortious conduct"). The Order of the Arrow expenses, the other un-reimbursed expenses, and the James E. West award were not caused by any denial of right of fair procedure, and consequently, Defendants are entitled to summary judgment as to these. Mr. Gibson is not entitled to compensation for the hours he spent working on his appeal, his out of pocket expenses or mileage, his court filing fee or cost of service, the days denied participation in Scouting activities, embarrassment, humiliation or damage to reputation and esteem or damage to professional reputation or diminution in mobility because his claim for violation of the right of fair procedure is not compensable by money damages, but rather remedied through injunctive relief. Plaintiff has cited no case to the Court involving the right of fair procedure, not constitutional due process rights or rights under inapposite federal statutes, entitling Mr. Gibson to these damages. Rather, the cases that address the fair procedure right that have been cited to the Court contemplate no remedies aside from injunctive relief for violation of this right. See Berrien v. Pollitzer, 165 F.2d 21, 23 (D.C. Cir. 1947) (holding that a person was excluded from the National Woman's Party without her rights of fair procedure and finding the District Court had jurisdiction to grant an injunction); Gottlieb, 102 S.E.2d at 857 (discussing a court's role in evaluating fair procedure claims and affirming a procedure providing notice and a hearing to the plaintiff). Consequently, the Court grants Defendants' motion for summary judgment as to compensatory damages.
See accompanying Memorandum Opinion regarding injunctive relief.
Because the Court has granted the defendants' motion as to compensatory damages, no punitive damages may be awarded. See Zedd v. Jenkins, 74 S.E.2d 791, 793 (Va. 1953) ("The general rule is that a plaintiff cannot maintain an action to recover mere punitive or exemplary damages, and that a finding of compensatory damages is a prerequisite to an award of exemplary damages").
Compensatory and Punitive Damages as to Count II
The Court grants Defendants' motion for summary judgment as to Mr. Gibson's claim for compensatory and punitive damages with respect to Count II. Because Defendants are entitled to judgment as a matter of law on the ultra vires count, Mr. Gibson is not entitled to compensatory or punitive damages on this count.
Attorney's Fees
The Court grants Defendants' motion for summary judgment on attorney's fees because the Commonwealth of Virginia adheres to the "American Rule"; attorney's fees are not recoverable by a prevailing party in a lawsuit unless a specific statutory or contractual provision allows such fees. See Lannon v. Lee Conner Realty Corp., 385 S.E.2d 380, 383 (Va. 1989).
III. CONCLUSION
The Court grants Defendants' motion for partial summary judgment as to the ultra vires claim because the Court finds that no genuine dispute of material fact exists and that Defendants are entitled to judgment as a matter of law since Defendants did not act beyond the scope of their own authority as delineated by their own bylaws. The Court further grants Defendants' motion for partial summary judgment on compensatory damages because the Court finds either that Mr. Gibson's claimed damages are not proximately caused by the violation of the fair procedure right or because money damages are not contemplated for violation of this right. Because the Court awards no compensatory damages, it awards no punitive damages. Finally, the Court grants Defendants' motion as to attorney's fees because the Commonwealth of Virginia adheres to the "American Rule" and no statutory or contractual provision requires the awarding of attorney's fees to the prevailing party.For the foregoing reasons, it is hereby
ORDERED that Defendants Boy Scouts of America and National Capital Area Council's Motion for Partial Summary Judgment is GRANTED.
The Clerk is directed to forward a copy of this Order to counsel of record.
MEMORANDUM ORDER
THIS MATTER is before the Court for determination of the appropriate injunctive relief to remedy the violation of Plaintiff Joseph Lee Gibson's ("Mr. Gibson," "Plaintiff") rights of fair procedure by Defendants Boy Scouts of America ("BSA") and National Capital Area Council ("NCAC") (collectively, "Defendants"). This case concerns the revocation of Mr. Gibson's membership in the Boy Scouts of America by BSA and NCAC, depriving him of his position as Scoutmaster for Troop 869, without notice that his membership was under consideration for revocation or of the basis for the revocation, or opportunity to reply to charges against him. The Court granted summary judgment to Mr. Gibson on his fair procedure claim by Order dated January 11, 2005. The Court granted summary judgment on Mr. Gibson's ultra vires claim to the defendants in the accompanying Memorandum Opinion dated March 3, 2005. All other claims have been dismissed. The question before the Court is what injunctive relief should be accorded Mr. Gibson for violation of his rights of fair procedure.The Court requested both parties brief the issue of what injunctive relief, if any, is necessary to vindicate Mr. Gibson's rights of fair procedure. The parties have briefed the matter, and oral argument was held on February 7, 2005. After careful consideration, in light of the defendants continued desire to revoke Mr. Gibson's membership, the Court requires the defendants to comply with the following procedure to ensure that Mr. Gibson's rights of fair procedure are not again violated:
(1) Defendants must provide Mr. Gibson with notice, in writing, of the charges against him;
(2) Defendants must hold a hearing before an impartial tribunal unfamiliar with Mr. Gibson or the facts of this case;
(3) The Scout Executive may appoint the members of the tribunal, described by defense counsel as the "Standards of Membership Committee," but no member may possess independent knowledge of the underlying facts at issue;
(4) Mr. Gibson will be permitted to appear at the hearing with counsel, and he may present live witnesses on his behalf, testify on his own behalf, and cross-examine witnesses;
(5) The Committee may consider anything of probative value and the rules of evidence do not apply to this proceeding;
(6) No member may conduct an independent investigation of the facts at issue or have ex parte contact with witnesses at the proceeding;
(7) The proceeding will occur in private, during an Executive Session of the Committee, and witnesses will be excluded after they testify at the hearing; and
(8) The deliberations of the Standards of Membership Committee are to be conducted privately (secret) at the end of the proceeding. A majority vote is sufficient to support a finding by the committee.
DISCUSSION
The Court requires the above procedure because it is required to do so to vindicate Mr. Gibson's rights of fair procedure under Virginia law. In Gottlieb v. Economy Stores, Inc., 102 S.E.2d 345 (Va. 1958), the Virginia Supreme Court defined the Court's role in analyzing fair procedure claims:
In reviewing an action expelling a member of a corporation, they [the courts] may inquire whether the member was given reasonable notice of the hearing of the charge against him, whether he was afforded an opportunity to be heard, and whether the hearing and expulsion were in good faith. In cases where the evidence is conflicting, the action of the corporation is conclusive, if it is in accordance with the law and the powers conferred upon the corporation. When there is evidence tending to support the conclusion, the courts will not interfere with the merits of the decision.Id. at 352; see also Emory College of Puerto Rico v. Accrediting Council for Continuing Educ. Training, Inc., No. 97-1416-A, 1997 U.S. Dist. LEXIS 23487 at *5 (E.D.Va. Oct. 22, 1997) (stating that Virginia law is "consistent with" the rule that, "[f]ederal review of the actions of a voluntary association with respect to its members is limited to consideration of whether the decisions are `arbitrary and unreasonable' and whether they are supported by `substantial evidence'" (citations omitted)). In line with Gottlieb, the Court has no desire to substitute itself for the membership of the Boy Scouts to determine whether Mr. Gibson is fit for membership. Rather, it is required by the relevant caselaw to ensure that Mr. Gibson is provided with his common law rights of fair procedure.
In crafting an appropriate remedy, the Court has considered relevant precedent from the Virginia Supreme Court, the Eastern District of Virginia's interpretation of Virginia law, the Court of Appeals of the District of Columbia, and the United States Court of Appeals for the District of Columbia. For example, in Gottlieb, the plaintiff, Mr. Gottlieb, alleged that the revocation of his membership in Economy Stores, Inc. ("Economy," "the defendant") was improper and illegal because of inadmissible and insufficient evidence and bad faith. Id. at 348. Shortly after he instituted suit against Economy, Economy reinstated Mr. Gottlieb to membership, gave Mr. Gottlieb written notice of complaints against him and a hearing date. Mr. Gottlieb appeared at the hearing with counsel, and they were allowed to "freely and fully take part" in the hearing before twelve directors. Id. at 349. The defendant presented a transcript of the hearing to the Court showing that documentary and testimonial evidence was considered and that Mr. Gottlieb testified in the hearing. Id. The Virginia Supreme Court held that the procedure used by the defendants after he filed suit was adequate, and dismissed Mr. Gottlieb's appeal after the trial court refused to issue an injunction requiring the defendants to reinstate Mr. Gottlieb: "It is sufficient if the procedure adopted and followed is fair and reasonable, and made for justice rather than form." Id. at 353
Similarly, in Emory, the Eastern District of Virginia held that Emory College of Puerto Rico's ("Emory") fair procedure rights were not violated by the Accrediting Council for Continuing Education Training, Inc.'s ("ACCET") decision to deny accreditation, because Emory was given reasonable notice of ACCET's accreditation action, a hearing, and opportunity to be heard, including permission to file an interim report between evaluations, and to appeal ACCET's initial determination. Id. at *7.
In de Yturbide v. Metropolitan Club of the City of Washington, 11 App.D.C. 180 (D.C. 1897), the Court of Appeals of the District of Columbia held that Mr. de Yturbide, who accused the daughter of a member of the Metropolitan Club of writing anonymous letters, was not entitled to reinstatement because the club notified him of the charges against him, gave him a hearing date and an opportunity to be heard, and did not act in bad faith in expelling him. Id. The Court also noted that courts, in evaluating the procedure employed by a social club in expelling a member, should consider
[T]hat notices are sent to all the persons who ought to be summoned, whether as committeemen, witnesses or accused; and that no one who has any bias or personal interest in the matter in question should sit as a member of the tribunal on the inquiry; the accused person should be given full opportunity of defending himself; and finally, the decision should be arrived at in a bona fide manner . . .Id. at 199. In addition, in Berrien v. Pollitzer, 165 F.2d 21 (D.C. Cir. 1947), the United States Court of Appeals for the D.C. Circuit, held that the trial court had jurisdiction to grant an injunction requiring reinstatement of a woman who had been expelled from the National Women's Party because she was "excluded without a `regularly conducted' trial, on due notice, by `constituted corporate authorities,' and a `judgment arrived at . . . in good faith.'" Id. at 23 (citing de Yturbide, 11 App.D.C. at 195).
CONCLUSION
In light of the above precedent, the Court requires that the defendants provide Mr. Gibson with the following procedure as they consider the revocation of his membership: (1) Defendants must provide Mr. Gibson with notice, in writing, of the charges against him;
(2) Defendants must hold a hearing before an impartial tribunal unfamiliar with Mr. Gibson or the facts of this case;
(3) The Scout Executive may appoint the members of the tribunal, described by defense counsel as the "Standards of Membership Committee," but no member may possess independent knowledge of the underlying facts at issue;
(4) Mr. Gibson will be permitted to appear at the hearing with counsel, and he may present live witnesses on his behalf, testify on his own behalf, and cross-examine witnesses;
(5) The Committee may consider anything of probative value and the rules of evidence do not apply to this proceeding;
(6) No member may conduct an independent investigation of the facts at issue or have ex parte contact with witnesses at the proceeding;
(7) The proceeding will occur in private, during an Executive Session of the Committee, and witnesses will be excluded after they testify at the hearing; and
(8) The deliberations of the Standards of Membership Committee are to be conducted privately (secret) at the end of the proceeding. A majority vote is sufficient to support a finding by the committee.
The Court is not reinstating Mr. Gibson to membership pending the outcome of the proceeding because the defendants have made a judgment to revoke his membership on the basis of their membership standards and information not before the Court. The Court has no independent basis to determine whether the reasons for the original decision have merit, and the Court will not substitute its judgment for that of the defendants as to the defendants' standards of membership, instead focusing only on Mr. Gibson's rights to a fair procedure. See Gottlieb, 102 S.E. 2d at 352. Given the nature of the Boy Scouts membership involving parents, children, and church members, the Court expressly declines to make a pre-hearing judgment to reinstate Mr. Gibson until the BSA give him a fair hearing and the Standards of Membership committee decides his case.
The Clerk is directed to forward a copy of this Order to counsel of record.
FINAL JUDGMENT
THIS MATTER is before the Court on Defendants Boy Scouts of America ("BSA") and National Capital Area Council's ("NCAC") (collectively, "Defendants") Motion for Partial Summary Judgment. In its previous Memorandum Opinion of March 3, 2005, the Court granted Defendants' Motion for Partial Summary Judgment on Count II of the Second Amended Complaint, Revised, on compensatory and punitive damages, and on attorney's fees. In its Memorandum Opinion of January 11, 2005, the Court granted summary judgment to Plaintiff Joseph Lee Gibson on Count I of the Second Amended Complaint, Revised. All other claims have been dismissed. From the foregoing, it herebyORDERED that JUDGMENT is ENTERED in favor of Defendants Boy Scouts of America and National Capital Area Council on Count II, compensatory and punitive damages, and attorney's fees, and against Plaintiff Joseph Lee Gibson. It is further
ORDERED that JUDGMENT is ENTERED in favor of Plaintiff Joseph Lee Gibson on Count I, and against Defendants Boy Scouts of America and National Capital Area Council.
The Clerk is DIRECTED to ENTER JUDGMENT pursuant to Federal Rule of Civil Procedure 58.
The Clerk is directed to forward a copy of this Order to Counsel.