                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 09-2234


MID-ATLANTIC EXPRESS, LLC, a Delaware LLC,

                Plaintiff - Appellee,

          v.

BALTIMORE COUNTY, MARYLAND,

                Defendant – Appellant,

          and

CHAPOLINI ASSOCIATES; 2010 RESERVIOR ROAD INVESTORS, LLC;
QUAD   PARTNERS   LIMITED   PARTNERSHIP;   DUNDALK   OPTIMIST
FOUNDATION, INCORPORATED; STATE OF MARYLAND STATE ROADS;
ANTHONY SZLACHETKA, JR.; GEORGE T. WISE, III; HARRY RUDO;
SHIRLEY M. RUDO; OAK GROVE APARTMENTS ASSOCIATION, LLC;
MICHAEL J. FLORIAN; PHYLLIS JANE FLORIAN; KIMBERLY RICHTER;
HAWKINS MANOR, LLC; MARY M. BENIK; ANNA BROCKMEYER; MARTHA
B. FRAZIER; WILLIAM J. GORGE; LEONARD W. MAUNES; ROBERT
HOLTHAUS; RONNIE DIETZ; PATRICIA DIETZ; DENNIS PARKER; HELEN
PARKER; GEORGE A. NELSON, JR.; PATRICIA C. HANLEY; WILLIAM
G. VON PARIS; MARY C. VON PARIS; WAYNE JAMES; CAROLINE J.
SEAMON; SUSAN J. CLARKE; ANDREW J. BAUER; LORRAINE BAUER;
WILLIAM D. CLARK; MAUREEN R. CLARK; ANTHONY PASZKIEWICZ; ANN
PASZKIEWICZ; DANIEL DAVID DRAPINSKI; KATHLEEN DRAPINSKI;
ANDREW C. HUTTON; ROY WISNIEWSKI; KYUNG WISNIEWSKI; KAMAL M.
IBRAHIM; KATHERINE MULDOON IBRAHIM; MARCIA ZBIKOWSKI; JOEL
ZBIKOWSKI; RALPH ALLEN; LINDA ALLEN; LINDA R. WARFIELD;
KEVIN REEVES; LAURIE REEVES; JOSEPH FICO, et al.; MICHAEL
HARRINGTON; BONNIE HARRINGTON; LLOYD MARTIN ST OURS;
CHRISTINE LOUISE ST OURS; LARRY D. KEEFER; GEORGIA L.
KEEFER; JOHN H. SWAM; DONNA K. SWAN; RICHARD GORDON; JOANNE
GORDON; HENRY A. FUGGI, JR.; DIXIE LEE FUGGI; HARDY
MANAGEMENT CO. LLC; DAVID WEAVER WARFIELD; WILLOWBROOK
PARTNERS LLC; PAUL M. WILKINSON; ELYSE S. WILKINSON; RAYMOND
E. WHEELER; ELLEN J. WHEELER;        DANIEL    ZORN;   KRISTA   ZORN;
BRUCE BRETON; ANGELA BRETON,

                Defendants.



Appeal from the United States District Court for the District of
Maryland, at Baltimore.    Catherine C. Blake, District Judge.
(1:09-cv-02386-CCB)


Submitted:   December 10, 2010                Decided:   January 7, 2011


Before WILKINSON, NIEMEYER, and KEENAN, Circuit Judges.


Vacated and remanded by unpublished per curiam opinion.


John E. Beverungen, County Attorney, James J. Nolan, Jr.,
Assistant County Attorney, Towson, Maryland, for Appellant.
Jerrold A. Thrope, GORDON, FEINBLATT, ROTHMAN, HOFFBERGER &
HOLLANDER, Baltimore, Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

               Baltimore County, Maryland (“Baltimore County”) seeks

to    appeal    the   district     court’s     order    granting    a   preliminary

injunction      to    Mid-Atlantic       Express,    LLC    (“Mid-Atlantic”)      for

pre-acquisition        entry      into     certain      county     properties     and

residences along a proposed liquid natural gas pipeline route.

Mid-Atlantic sought entry in order to complete certain surveys

for    submission      to   the    Federal     Energy      Regulatory   Commission

(“FERC”) for final project approval.                    During the pendency of

this appeal, Mid-Atlantic completed the surveys and voluntarily

dismissed the action.             Mid-Atlantic has now moved to dismiss

Baltimore      County’s     appeal.       After   we    deferred    action   on   the

motion to dismiss, Mid-Atlantic represented to the court that it

would neither file a brief nor attend oral argument.                         For the

reasons that follow, we deny the motion to dismiss, vacate the

district court’s judgment, and remand for further proceedings.



                             I.    Motion to Dismiss

               Mid-Atlantic argues that because it has dismissed its

complaint in the district court and because it has completed the

survey work that was at issue, the controversy presented in this

case is no longer live.               Baltimore County responds that the

controversy remains extant because of the injunction bond Mid-



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Atlantic posted and because of the “capable of repetition, yet

evading review” exception to the mootness doctrine

               “‘[A] case is moot when the issues presented are no

longer “live” or the parties lack a legally cognizable interest

in the outcome.’”              United States v. Hardy, 545 F.3d 280, 283

(4th Cir. 2008) (quoting Powell v. McCormack, 395 U.S. 486, 496

(1969)).        “‘The inability of the federal judiciary to review

moot   cases     derives       from     the   requirement         of    Art.       III     of   the

Constitution under which the exercise of judicial power depends

upon the existence of a case or controversy.’”                                 Id. (quoting

DeFunis v. Odegaard, 416 U.S. 312, 316 (1974)).                                    Because the

requirement for a live case or controversy exists through all

stages of the proceedings, “litigation may become moot during

the pendency of an appeal.”                   Id. (internal quotation marks and

citation omitted).

               Baltimore County first argues that under Fed. R. Civ.

P.    65.1,    it    is   entitled       to    seek      damages       under       the    $50,000

injunction bond filed by Mid-Atlantic.                          Baltimore County cites

Groupo      Mexicano      v.    Alliance       Bond      Fund,     Inc.,    527      U.S.       308

(1999), for the proposition that an otherwise moot controversy

may    be     live   if   a     party    has       a    claim     against      a    Rule        65.1

injunction      bond.          Other    cases,         however,    note     that         the    mere

possibility of recovery on an injunction bond is not sufficient

to render an otherwise moot case ripe for appeal.                                   See, e.g.,

                                               4
Am. Can Co. v. Mansukhani, 742 F.2d 314, 320 (7th Cir. 1984)

(“If    it   were     highly    unlikely      that       defendants          would      seek       to

recover on American Can’s injunction bonds, the existence of

these   bonds    would       not    prevent       the    controversy          from      becoming

moot.”); International Union v. Dana Corp., 697 F.2d 718, 721-22

(6th Cir. 1983)        (en     banc)   (injunction             bond    did       not    preserve

issue where defendant had agreed not to seek recovery on bond).

              Here,    the     parties      have        not    indicated         whether       the

surveys      caused    any    damage   to     any       properties,         or     whether     any

claims against the bond have been or will be made.                               Accordingly,

we   decline    to     rule    on   this    issue        because       we    are       not    in   a

position to determine with any certainty whether the existence

of an injunction bond renders this a “live” controversy.

              Baltimore County next argues that this case remains

viable under the exception to the mootness doctrine that permits

the court to consider disputes that, although moot, are “capable

of repetition, yet evading review.”                           Fed. Election Comm’n v.

Wis. Right to Life, Inc., 551 U.S. 449, 462 (2007) (internal

quotation      marks    omitted).          The     exception          is    limited      to    the

“exceptional situation[].” Incumaa v. Ozmint,                              507 F.3d 281, 289

(4th Cir. 2007) (quoting Los Angeles v. Lyons, 461 U.S. 95, 109

(1983)).      “[I]n the absence of a class action, the ‘capable of

repetition, yet evading review’ doctrine [is] limited to the

situation      where    two    elements       combined:           (1)        the    challenged

                                              5
action was in its duration too short to be fully litigated prior

to its cessation or expiration, and (2) there was a reasonable

expectation that the same complaining party would be subjected

to the same action again.”             Weinstein v. Bradford, 423 U.S. 147,

149 (1975).

             The Supreme Court recently stated that “[t]he second

prong   of    the   ‘capable      of    repetition’        exception    requires    a

‘reasonable     expectation’      or    a       ‘demonstrated    probability      that

‘the same controversy will recur involving the same complaining

party.’”      Fed. Election Comm’n, 551 U.S. at 462.                    In district

court, Mid-Atlantic represented that it might perform further

surveys in connection with the construction of this pipeline.

In arguing its motion to dismiss, Mid-Atlantic claims that this

concession is not sufficient to keep this controversy alive.                       In

light of the obvious fact that Mid-Atlantic can complete surveys

of this type in a short enough time to evade our review, and in

light   of    Mid-Atlantic’s       representations          in    the   record,     we

conclude     that   this   case   does      fall    into   an    exception   to    the

mootness doctrine; accordingly, we deny the motion to dismiss as

moot.



                       II.     Preliminary Injunction

             Turning to the merits of this case, Baltimore County

argues that the district court erred in three respects: first,

                                            6
it lacked subject matter jurisdiction to issue the injunction;

second, it erred in granting the injunction because Mid-Atlantic

did not satisfy the elements for issuance of an injunction; and

third, that Mid-Atlantic failed to exhaust its administrative

remedies      with   the     FERC.       Mid-Atlantic       has      elected    not    to

respond.

              If the district court determines at any time that it

lacks subject matter jurisdiction, it “must dismiss the action.”

Fed. R. Civ. P. 12(h)(3); see Arbaugh v. Y&H Corp., 546 U.S.

500, 514 (2006); United States ex rel. Vuyyuru v. Jadhav, 555

F.3d 337, 347 (4th Cir. 2009).                  When the district court lacks

jurisdiction, this court has jurisdiction over the appeal “not

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

of the lower court in entertaining the suit.”                          Arizonans for

Official English v. Arizona, 520 U.S. 43, 73 (1997).

              Mid-Atlantic       bears    the    burden   of      demonstrating        the

existence of subject matter jurisdiction over its claims.                              See

Piney   Run    Pres.    Ass’n     v.    County   Comm’rs,      523    F.3d     453,    459

(4th Cir. 2008).            Federal     question    jurisdiction        is     based   on

actions “arising under the Constitution, laws, or treaties of

the United States.”             28 U.S.C. § 1331 (2006).             However, “[t]he

mere    assertion      of   a   federal    claim”    does      not    confer    subject

matter jurisdiction under § 1331.                  Lovern v. Edwards, 190 F.3d

648, 654 (4th Cir. 1999).              Instead, the plaintiff is required to

                                           7
allege   a    substantial     federal   claim.     Id.    (citing          Hagans   v.

Lavine, 415 U.S. 528, 536 (1974)).

             In the district court, Mid-Atlantic indicated that it

brought the action for an injunction on the basis of the Natural

Gas   Act    (“NGA”),    15    U.S.C.   § 717    (2006).            The    pertinent

provision of the NGA states:

      When any holder of a certificate of public convenience
      and necessity cannot acquire by contract, or is unable
      to   agree  with   the  owner   of  property   to  the
      compensation to be paid for, the necessary right-of-
      way to construct, operate, and maintain a pipe line or
      pipe lines for the transportation of natural gas, and
      the necessary land or other property, in addition to
      right-of-way, for the location of compressor stations,
      pressure apparatus, or other stations or equipment
      necessary to the proper operation of such pipe line or
      pipe lines, it may acquire the same by the exercise of
      the right of eminent domain in the district court of
      the United States for the district in which such
      property may be located, or in the State courts. The
      practice and procedure in any action or proceeding for
      that purpose in the district court of the United
      States shall conform as nearly as may be with the
      practice and procedure in similar action or proceeding
      in the courts of the State where the property is
      situated: Provided, That the United States district
      courts shall only have jurisdiction of cases when the
      amount claimed by the owner of the property to be
      condemned exceeds $3,000.

15 U.S.C. § 717f(h) (emphasis added).              Baltimore County notes

that in this case, Mid-Atlantic did not bring an action “to

acquire” rights “by the exercise of eminent domain.”                        In fact,

though      Mid-Atlantic      represented   that    it        had     condemnation

authority in district court, the FERC certificate upon which it

relied   contained      significant     restrictions     on    its        ability   to

                                        8
condemn       property      in    furtherance           of    the     construction        of   the

pipeline.       Environmental Condition 55 of the certificate stated

that “Mid-Atlantic shall not exercise eminent domain authority

granted    under     [the        Natural      Gas      Act]    section      7(h)     to   acquire

permanent      rights-of-way           on    [residential]           properties      until     the

required site specific residential construction plans have been

reviewed and approved in writing by the Director of [the Office

of Energy Projects (“OEP”)].”                       Recognizing the significance of

Condition 55, Mid-Atlantic sought clarification from the FERC,

stating    “[t]he      limitation            on    using      eminent       domain    authority

. . .    in    Condition         No.    55    appears         to     preclude      Mid-Atlantic

Express from exercising eminent domain authority to gain access

to site-specific plans, unless that exercise of the authority

takes some form other than seeking a permanent right-of-way.”

At   the      time   the     district             court      heard    the    complaint,        the

clarification motion was pending with the FERC.

               In E. Tenn. Natural Gas Co. v. Sage, 361 F.3d 808

(4th Cir. 2004), we held that “once a district court determines

that a gas company has the substantive right to condemn property

under the NGA, the court may exercise equitable power to grant

the remedy of immediate possession through the issuance of a

preliminary      injunction.”               Sage,      361    F.3d    at    828.      Baltimore

County     notes     that    although         the      district        court’s      preliminary

injunction order does contain a finding that Mid-Atlantic is the

                                                   9
holder     of        a    FERC     Certificate     of    Public    Convenience     and

Necessity,       it        fails    to   find    that    the     Certificate    grants

condemnation authority to Mid-Atlantic.                        Indeed, in light of

Condition 55, we conclude that Mid-Atlantic did not have the

authority       to       condemn   property,     and    accordingly,     the   district

court    was         without       jurisdiction    to      enter   the    preliminary

injunction.

            Accordingly, we deny the motion to dismiss, vacate the

district     court’s         judgment,     and    remand    with    instructions    to

dismiss for lack of subject matter jurisdiction.                         In light of

this disposition we do not address Baltimore County’s remaining

challenges to the preliminary injunction.                      We dispense with oral

argument because the facts and legal contentions are adequately

presented in the materials before the court and oral argument

would not aid the decisional process.

                                                                VACATED AND REMANDED




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