PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PATRICIA STEPHENS, 

Plaintiff-Appellant,

v.  No. 07-1478 COUNTY OF ALBEMARLE, VIRGINIA;

CITY OF CHARLOTTESVILLE; RIVANNA

SOLID WASTE AUTHORITY,

Defendants-Appellees. 

Appeal from the United States District Court

for the Western District of Virginia, at Charlottesville.

Norman K. Moon, District Judge.

(3:04-cv-00081)

Argued: March 18, 2008

Decided: May 9, 2008

Before Sandra Day O’CONNOR, Associate Justice (Retired),

Supreme Court of the United States, sitting by designation,

WILLIAMS, Chief Judge, and HAMILTON, Senior Circuit Judge.

Vacated and remanded by published opinion. Chief Judge Williams

wrote the opinion, in which Associate Justice O’Connor and Senior

Judge Hamilton joined. 

COUNSEL

ARGUED: Deborah Chasen Wyatt, WYATT & ASSOCIATES,

P.L.C., Charlottesville, Virginia, for Appellant. Alvaro Antonio Inigo,
ZUNKA, MILNOR, CARTER & INIGO, LTD., Charlottesville, Virginia, for Appellees. ON BRIEF: Richard H. Milnor, ZUNKA, MILNOR, CARTER & INIGO, LTD., Charlottesville, Virginia, for

Appellees. 

OPINION

WILLIAMS, Chief Judge:

After Patricia Stephens’s husband, Wayne Stephens, died in an

explosion at a landfill near Ivy, Virginia, she brought this action

under 42 U.S.C.A. § 1983 (West 2003 & Supp. 2006) against the

landfill’s operators—the County of Albemarle, the City of Charlottesville, and the Rivanna Solid Waste Authority ("RSWA")1

 (collectively "Appellees"). Ms. Stephens claims that two settlement

agreements between Appellees and third-parties unconstitutionally

conditioned government benefits on the relinquishment of the thirdparties’ First Amendment rights to speak freely about the landfill,

thereby depriving her and her husband of their First Amendment

rights to receive information. She further claims that this violation

proximately caused Wayne Stephens’s death. 

The district court granted summary judgment in favor of Appellees,

reasoning that the settlement agreements did not make any government benefit contingent on the surrender of First Amendment rights.

We conclude, however, that because Ms. Stephens, both individually

and as her husband’s personal representative, lacks standing to pursue

her claims, the district court was without subject-matter jurisdiction

to consider the merits of her claims. We therefore vacate the judgment

of the district court and remand for dismissal of Ms. Stephens’s case.

I.

This appeal is from the district court’s grant of summary judgment

1The Rivanna Solid Waste Authority ("RSWA") is a distinct governmental entity jointly operated by the County of Albemarle and the City

of Charlottesville. 

2 STEPHENS v. COUNTY OF ALBEMARLE
in favor of Appellees, so we review the facts in the light most favorable to Ms. Stephens. See Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 255 (1986) (noting that all evidence must be construed in the

light most favorable to the party opposing summary judgment). 

Ms. Stephens resides in the area of Albemarle County, Virginia

known as Ivy, near the landfill operated by Appellees. Her husband,

Wayne, worked as the landfill’s manager until April 10, 2003, when

a cutting torch that he was using to cut old oil storage tanks for resale

as scrap metal sparked an explosion, killing him. Cutting fuel tanks

in this manner was a serious violation of the regulations of the Occupational Safety and Health Administration ("OSHA"). OSHA cited

the RSWA for six separate serious violations in connection with the

explosion. These failings, however, do not represent the basis for the

present litigation, which focuses instead on Appellees’ actions several

years earlier, when a number of Stephens’s neighbors raised concerns

about the landfill’s environmental impacts. 

In the mid-1990s, plans to maximize the amount of trash that could

be put into the landfill spurred a number of individuals living near the

landfill to form a citizens group called the Ivy Steering Committee

(hereinafter the "Committee"). Concerned primarily about water and

air pollution from the landfill, Committee members educated themselves "about the issues at the landfill" and met, usually on a weekly

basis, to discuss those issues. (J.A. at 207.) On a number of occasions,

Committee members relayed their concerns to regulatory agencies, at

one point writing letters to the Environmental Protection Agency

("EPA") and writing many letters to the Virginia Department of Environmental Quality. Committee members also wrote letters to the

RSWA, and some members, particularly David Booth and Ed

Strange, often called the RSWA to voice concerns. The Committee

did not make public the minutes of its meetings. It did, however,

maintain a website and erected a billboard with a "Mr. Yucky face"-

style design that was related to issues of water pollution. 

The Stephenses were not members of the Committee and did not

attend the meetings. In the course of this lawsuit, Ms. Stephens has,

however, gathered information through discovery regarding the

group’s discussions. One member, Ed Strange, stated that although

the concerns discussed "most often involved water and air pollution,

STEPHENS v. COUNTY OF ALBEMARLE 3
. . . discussions were by no means limited to these concerns and in

fact covered virtually any activity taking place at the landfill." (J.A.

at 274.) Another member, Daniel Burke, agreed that the discussions

could extend to, for example, worker safety, explaining that if anyone

in the Committee knew about a practice that endangered the life or

safety of an employee at the landfill, it would definitely have come

up in the meetings. Burke did not, however, remember discussing any

worker-safety concerns that were not coextensive with the Committee

members’ own concerns about water and air quality. He explained

that, before learning of Wayne Stephens’s death in the newspaper, he

personally did not have any misgivings about this aspect of the landfill’s operations, as he had "no reason to . . . believe that they weren’t

professional at burying trash." (J.A. at 246.) 

In 1998, the Committee, dissatisfied with the results of its calls and

letters, instituted a lawsuit against Appellees. In Weber v. RSWA,

3:98cv0019 (W.D. Va. 1998), twenty-four plaintiffs, including individuals living near the landfill as well as the St. John the Baptist Episcopal Church and the Peacock Hill Water Authority, alleged that the

landfill was contaminating the surrounding air and water, in violation

of federal and state environmental statutes and state nuisance law.

Appellees settled the Weber lawsuit with all but four of the plaintiffs

by entering into two separate settlement agreements in 2000. 

Appellees entered into one of the settlement agreements (the

"Booth Agreement") with David and Maureen Booth, whose 26-acre

property abutted the landfill. Pursuant to the Booth Agreement,

Appellees agreed to purchase the Booths’ property. The Booths, in

exchange, agreed to, among other things, release their claims against

Appellees and sign two letters withdrawing complaints they had made

about the landfill to regulatory agencies. Of particular relevance to

this appeal, the Booth Agreement also provided that:

The Booths, to the extent that they have control over such

matters and to the extent possible, agree to remove the Ivy

Steering Committee website and any language or images

from any personal websites and billboards, from the public

domain which deal with any of the matters raised in the

Action or with respect to the Ivy landfill. Further, the

Booths will cease opposition to the Ivy landfill and any fur4 STEPHENS v. COUNTY OF ALBEMARLE
ther permits for which it may apply, will refrain from

directly or indirectly opposing the landfill or permitting, will

make no further private or public adverse comments about

the landfill, and will not engage or solicit from others any

opposition to or legal action opposed to said landfill or its

permitting process.

(J.A. at 57-58.) 

Another settlement agreement, the "Burke Agreement," covered the

remaining settling plaintiffs. In the Burke Agreement, Appellees

agreed to modify a pending permit application to construct and operate a new waste disposal cell ("Cell 5") at the landfill, as well as to

handle particular wastes in certain ways, continue to refuse certain

wastes at the landfill, continue to monitor groundwater, purchase certain property from certain plaintiffs, monitor air quality, pay Comprehensive Environmental Response, Compensation, and Liability Act

("CERCLA") costs, and pay attorneys’ fees. Appellees also agreed to

install water treatment devices if groundwater contamination

exceeded a certain level and to provide the plaintiffs with potable

water if contamination exceeded EPA standards; these obligations are

not contingent on the settling plaintiffs fulfilling the terms of the

Burke Agreement. In exchange, the settling plaintiffs released their

claims against Appellees and also agreed not to oppose the Cell 5 permit2

and to remove from their websites any language or images "which

deal with any of the matters raised in the Action with respect to the

Ivy landfill." (J.A. at 99.) 

David Booth used the funds he received pursuant to the Booth

Agreement to relocate to a new home with his wife. Following the

settlement, he "never looked back," (J.A. at 186), and thus could not

say with certainty whether the Committee continued to hold meetings

2

"Oppose" was defined as submitting written or oral comments in

opposition to the permit to the relevant authorities, speaking in opposition to the permit at public hearings, making statements to the press

opposing the permit, providing documents to authorities for the purpose

of opposing the permit, providing another person with documents or

statements in opposition to the permit, or providing another person with

documents for use in opposing the permit. 

STEPHENS v. COUNTY OF ALBEMARLE 5
after the two settlement agreements went into effect. He did believe

the meetings continued, albeit with a smaller group. Although Booth

never actually read the terms of his settlement agreement, he perceived that its restrictions on his speech were extremely broad. As a

result, there have been "times [he] wanted to say something and realized [he] could not." (J.A. at 163.) Currently, Booth "d[oesn’t] really

care," (J.A. at 188), whether a court invalidates the speech restrictions

in the Booth Agreement. He does, however, resent the encumbrance

it represents. Indeed, he feels that "anybody should be able to have

a free say," and that he has topics he would like to talk about were

he not constrained by the agreement. (J.A. at 162.) 

Similarly, Daniel Burke resents his own settlement agreement to

the extent that it restricts his ability to oppose the Cell 5 permit.

Offended by the idea that "the local government tried to gag its own

citizens," he "wanted to feel free to speak out on that issue" and considered challenging the Burke Agreement, but ultimately decided not

to do so. Otherwise, Burke did not have any particular issues he

wanted to discuss. 

Burke agreed to the provision restricting him from opposing the

Cell 5 permit only because he knew that the Burke Agreement did not

bind Gertrude and Michael Weber ("the Webers") or Ed and Pamela

Strange ("the Stranges"), whom he described as core members of the

Committee, and whom he believed would become aware of any problems and act as his voice if necessary. According to Burke, the

Webers and the Stranges continued to have meetings, at least with

their attorneys and a hydrologist, after the other plaintiffs in the

Weber suit settled. Burke indicated that others have also discussed

issues related to the landfill: he knows of two meetings held to discuss

leachate problems from the part of the landfill known as Cell 2, but

was out of town for both meetings and thus was unable to attend.

Burke did not know about the fuel-tank cutting at the landfill. He, like

Booth, learned of Wayne Stephens’s death through the newspaper. 

Ed Strange, however, learned of the fuel-tank-cutting practice

before the explosion. Strange noticed black smoke coming from the

landfill approximately seven months before Wayne Stephens’s death.

He inquired into the matter and learned that the black smoke was discharged in connection with the practice of cutting up storage tanks,

6 STEPHENS v. COUNTY OF ALBEMARLE
the practice that ultimately killed Wayne Stephens. Although Strange

did not sign either settlement agreement and therefore had no restrictions on his speech, he did not contact anyone regarding what he had

learned. According to Strange, the Committee meetings abruptly

ended following the settlements, and because he no longer had his

"group of associates to discuss landfill issues with, [he] took the matter no further." (J.A. at 275.) Strange believes that if the Committee

had continued its meetings, he would have initiated a vigorous discussion that would have caused the group to pursue the issue "in whatever fashion necessary to either end the practice or obtain assurances

(now known not to exist) that the practice was safe." (J.A. at 275.) 

Ms. Stephens, too, believes that the explosion would not have

occurred had a citizens group more zealously monitored and opposed

the landfill activities. Accordingly, on October 1, 2004, Stephens filed

a complaint in the U.S. District Court for the Western District of Virginia asserting three causes of action: (1) a violation of the First

Amendment proximately causing death (Count I); (2) a violation of

Due Process (Count II), and, (3) violations of Ms. Stephens’s and her

husband’s First Amendment rights to receive information concerning

safety and environmental hazards posed by the landfill (Count III).

Stephens’s complaint sought $15 million in damages for the wrongful

death of Wayne Stephens and $1 million in damages for the deprivation of the Stephenses’ First Amendment rights to receive information

concerning the landfill, as well as declaratory and injunctive relief

voiding the Booth Agreement and the Burke Agreement. 

The district court initially dismissed Stephens’s complaint but subsequently granted, in part, Ms. Stephens’s motion to reconsider that

decision and reinstated the First Amendment claims (Counts I & III).

The crux of these claims was Ms. Stephens’s contention that the

Booth Agreement and the Burke Agreement unconstitutionally conditioned government benefits on the relinquishment of the settling

plaintiffs’ First Amendment rights to speak freely about the landfill.

This condition, she argued, prevented the dissemination of health and

safety information that their neighbors had a reciprocal First Amendment right to receive. Ms. Stephens split the claimed First Amendment violation into two Counts (Counts I & III) because she further

alleged that had the settlement agreements not stifled discussion of

landfill safety information, someone would have uncovered the

STEPHENS v. COUNTY OF ALBEMARLE 7
OSHA violations occurring at the landfill, thus preventing Wayne

Stephens’s death. The district court initially doubted Ms. Stephens’s

standing to assert these "truly novel" claims. (J.A. at 24.) Upon reconsidering its dismissal of Counts I and III at the pleading stage, however, the district court concluded that because Ms. Stephens’s

complaint alleged the existence of one or more willing speakers and

also alleged that she and her husband were potential recipients of

speech from the parties to the settlement agreements because they

lived in Albemarle County near the landfill, Ms. Stephens, both in her

own right and on behalf of her deceased husband, had standing to pursue her First Amendment claims. 

Ultimately, the district court granted summary judgment in favor

of Appellees. Without revisiting the issue of standing, the court

rejected Ms. Stephens’s claims on the merits, reasoning that because

neither the Booth Agreement nor the Burke Agreement conditioned

a government benefit on the surrender of First Amendment rights, Ms.

Stephens could not prevail. 

Ms. Stephens timely appealed, and we have jurisdiction pursuant

to 28 U.S.C.A. § 1291 (West 2006).3

II.

As a court of limited jurisdiction, we have "a special obligation to

satisfy [our]self not only of [our] own jurisdiction, but also that of the

lower courts in a cause under review, even though the parties are prepared to concede it." Bender v. Williamsport Area Sch. Dist., 475 U.S.

534, 541 (1986) (internal quotation marks omitted). "When the lower

federal court lacks jurisdiction, we have jurisdiction on appeal, not of

the merits but merely for the purpose of correcting the error of the

lower court in entertaining the suit." Id. (internal quotation marks and

alteration omitted); see also Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83, 94-95 (1998) ("The requirement that jurisdiction be

established as a threshold matter springs from the nature and limits of

the judicial power of the United States and is inflexible and without

3Ms. Stephens does not appeal the district court’s dismissal of the Due

Process claim (Count II) under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim. (J.A. at 15.) Accordingly, this claim is not before us. 

8 STEPHENS v. COUNTY OF ALBEMARLE
exception." (internal quotation marks and alteration omitted)). To that

end, we must "assure ourselves of [Stephens’s] standing under Article

III," for the requirement of standing enforces "the constitutional limitation of federal-court jurisdiction to actual cases or controversies."

Daimler Chrysler Corp. v. Cuno, 547 U.S. 332, 340, 341-42 (2006)

(internal quotation marks omitted).4

It is well-established that, to satisfy Article III’s standing requirements, a plaintiff must show that:

(1) [she] has suffered an ‘injury in fact’ that is (a) concrete

and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury is fairly traceable to the

challenged action of the defendant; and (3) it is likely, as

opposed to merely speculative, that the injury will be

redressed by a favorable decision. 

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-

81 (2000) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992)). "The party invoking federal jurisdiction bears the burden

of establishing these elements." Lujan, 504 U.S. at 561. 

The Supreme Court in Lujan explained that a plaintiff establishes

her standing "in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." 504 U.S. at

561. "At the pleading stage, general factual allegations of injury

resulting from the defendant’s conduct may suffice, for on a motion

to dismiss we presume that general allegations embrace those specific

facts that are necessary to support the claim." Id. (internal quotation

marks and alteration omitted). "In response to a summary judgment

motion, however, the plaintiff can no longer rest on such mere allegations, but must ‘set forth’ by affidavit or other evidence ‘specific

facts’ . . . which for purposes of the summary judgment motion will

be taken to be true." Id. (quoting Fed. R. Civ. P. 56(e)).

4To assist us in this endeavor, we requested supplemental briefs from

the parties addressing Ms. Stephens’s standing to pursue her claims on

behalf of herself and Wayne Stephens. We appreciate the help that they

provided. 

STEPHENS v. COUNTY OF ALBEMARLE 9
Ms. Stephens claims that she has set forth a sufficient factual basis

for her standing to withstand summary judgment on that ground.

According to Ms. Stephens, both she and her husband have suffered

"injuries in fact"—violations of their First Amendment right to

receive information—that were caused by the speech restrictions

Appellees obtained through the settlement agreements and are

redressable by a favorable decision in this case. Appellees counter

that neither Ms. Stephens nor her husband was a potential recipient

of speech covered by the Booth and Burke Agreements. Appellees

therefore contend that because the Stephenses would not have

received information from the settling plaintiffs about health and

safety concerns posed by the landfill, they were not injured by the

speech restrictions in the Booth and Burke Agreements. We agree that

Stephens’s allegations of injury are simply too speculative to support

standing. 

To be sure, "[i]t is now well established that the Constitution protects the right to receive information and ideas" from a willing

speaker. Stanley v. Georgia, 394 U.S. 557, 564 (1969); see also Va.

State Bd. of Pharmacy v. Va. Citizens Consumer Council, 425 U.S.

748, 756 (1976) (explaining that where a willing speaker exists, "the

protection afforded [by the First Amendment] is to the communication, to its source and to its recipients both").

But to have standing to assert a right to receive speech, a plaintiff

must show that there exists a speaker willing to convey the information to her. See FOCUS v. Allegheny County Court of Common Pleas,

75 F.3d 834, 838-39 (3d Cir. 1996) (holding that plaintiffs with an

interest in a lawsuit had standing to challenge gag order constraining

the speech of parties to a widely publicized adoption case because one

party to the case had spoken publicly before the gag order, supporting

the inference that it would be willing to do so again); In re Application of Dow Jones & Co., 842 F.2d 603, 606-08 (2d Cir. 1988) (holding that news agencies had standing to challenge gag order

constraining speech of trial participants because extensive pretrial

publicity showed that the trial participants were willing speakers and

that the news agencies were in fact potential receivers of the

restrained speech); Public Citizen v. Liggett Group, Inc., 858 F.2d

775, 787 n.12 (1st Cir. 1988) (holding that third-party public interest

group had standing to challenge protective order in court case because

10 STEPHENS v. COUNTY OF ALBEMARLE
the plaintiffs clearly indicated that they would disseminate the information if permitted to do so, meaning that modification of the order

would, as a practical matter, guarantee the group access to documents). 

Here, Stephens provided deposition testimony from Booth and

Burke indicating their willingness to speak about matters covered by

their respective settlement agreements. Booth stated that there were

"times [he] wanted to say something and realized [he] could not,"

(J.A. at 163), because of the Booth Agreement. Similarly, Burke

expressed resentment toward the inclusion of a speech restraint in the

Burke Agreement and a desire to see the restriction lifted. Thus, Ms.

Stephens has presented evidence that at least one of the signatories to

each settlement agreement would be a willing speaker in the absence

of the agreements. 

Ms. Stephens has not, however, offered any indication that these

willing speakers would have discussed the landfill with her or her

husband in the past or that they would presently discuss the landfill

with her if they were not constrained by the settlement agreements.

Neither Booth nor Burke claimed to have spoken to either of the Stephenses regarding the landfill in the past or to have had any desire to

do so. And, looking forward, neither Booth nor Burke have indicated

that there is any particular landfill-related issue that either of them

would like to discuss. Burke stated that he currently only takes issue

with, and wants to speak about, the speech restriction itself; Booth has

"never looked back," (J.A. at 181), and "d[oesn’t] really care," (J.A.

at 188), if the speech restriction is lifted, though he does resent the

encumbrance it represents. 

Moreover, Ms. Stephens has not sought to discuss the landfill with

either Booth or Burke. Burke did not know Stephens, and although

Stephens did know Booth, who had been a relatively close neighbor

of hers before he relocated, she saw him only on a few occasions after

he moved and has never approached him with any questions related

to Wayne Stephens’s death. Thus, there exists no direct connection

between Booth and/or Burke and Stephens such that, absent the settlement agreements, Stephens would expect to receive the information

that Booth and Burke possessed. Cf. Lamont v. Postmaster Gen., 381

U.S. 303, 304-05 (1965) (successful challenge to a statute restricting

STEPHENS v. COUNTY OF ALBEMARLE 11
the right to receive certain publications (deemed communist propaganda) through the mail brought by two individuals whose publications had been detained by the postal service). 

Nevertheless, Ms. Stephens argues that she "stands among the core

class of foreseeable recipients of the banned safety speech," (Supp.

Br. of Appellant at 1), urging us to presume that, because she lives

near Booth, Burke, and the landfill, she is a potential recipient of

Booth’s and Burke’s landfill-related speech. This contention, however, is belied by the absence of any indication that Stephens ever

once was a recipient of such information from Booth, Burke, or any

other Committee member during the years when she claims those

individuals were outspoken, as well as by her failure to seek out information from signatories of the Booth and/or Burke Agreements.

Although Ms. Stephens alleges that her neighbors were vocal in discussing problems at the landfill prior to the settlements, she does not

claim that either she or her husband, who were not members of the

Committee, ever heard or read anything from this vociferous group.

Similarly, although Ms. Stephens offered evidence that the Committee maintained a website impacted by the settlement agreements, she

does not assert that either she or her husband ever visited (or

attempted to visit) that website. Instead, she leaves us to speculate

that, although she did not receive information from Committee members in the past by virtue of her status as a neighbor and has not

actively sought information from them, something might have

changed such that she would now hear from Booth and Burke if they

could speak freely. In so doing, she forgets that, to satisfy Article III’s

standing requirements, a plaintiff must suffer an injury that is "actual

and imminent" not "conjectural or hypothetical." Lujan, 504 U.S. at

560 (internal quotation marks omitted). 

In sum, Ms. Stephens merely speculates that she and/or her husband would have been and that she continues to be a potential recipient of speech from members of the Committee, specifically, Booth

and Burke, had those individuals not been subject to restrictions

imposed by the Booth and Burke Agreements, respectively. Because

Stephens has not provided any factual support for this conjecture, she

cannot demonstrate that the speech restrictions in the settlement

agreements caused her, or her husband, any injury. Accordingly, both

12 STEPHENS v. COUNTY OF ALBEMARLE
individually and as Wayne Stephens’s personal representative, she

lacks standing to pursue her First Amendment claims.

III.

For the foregoing reasons, we vacate the judgment of the district

court and remand with instructions to dismiss Ms. Stephens’s case for

lack of jurisdiction. 

VACATED AND REMANDED

STEPHENS v. COUNTY OF ALBEMARLE 13