                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-2244


DANIEL L. MILLER, d/b/a D.L. Miller Logging,

                Plaintiff - Appellant,

           v.

MONTGOMERY   COUNTY,    MARYLAND;  ISIAH   LEGGETT,    County
Executive,   Montgomery   County;  ROBERT  HOYT,    Director,
Montgomery County Department of Environmental Protection;
STAN EDWARDS, Division Chief, Division of Environmental
Policy and Compliance; LAURA MILLER, County Arborist,
Division of Environmental Policy and Compliance; THE
MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION;
ROLLIN STANLEY, Planning Director, The Maryland-National
Capital Park and Planning Commission; MARK PFEFFERLE, Forest
Conservation Program Manager, The Maryland-National Capital
Park and Planning Commission,

                Defendants - Appellees.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Alexander Williams, Jr., District
Judge. (8:09-cv-03137-AW)


Argued:   October 27, 2011                 Decided:   December 19, 2011


Before TRAXLER, Chief Judge, and GREGORY and KEENAN, Circuit
Judges.


Affirmed by unpublished opinion.        Judge Keenan wrote the
opinion, in which Chief Judge Traxler and Judge Gregory joined.
ARGUED: Michele McDaniel Rosenfeld, ROSENFELD & ROSENFELD, LLC,
Potomac, Maryland, for Appellant.   Edward Barry Lattner, COUNTY
ATTORNEY’S OFFICE, Rockville, Maryland; Jared Michael McCarthy,
MARYLAND-NATIONAL CAPITAL PARK & PLANNING COMMISSION, Riverdale,
Maryland, for Appellees.     ON BRIEF: Marc P. Hansen, Acting
County Attorney, Clifford L. Royalty, Division Chief, COUNTY
ATTORNEY’S OFFICE, Rockville, Maryland, for County Appellees;
Adrian R. Gardner, General Counsel, MARYLAND-NATIONAL CAPITAL
PARK & PLANNING COMMISSION, Riverdale, Maryland, for Commission
Appellees.


Unpublished opinions are not binding precedent in this circuit.




                                2
BARBARA MILANO KEENAN, Circuit Judge:

      Daniel       L.    Miller     appeals          from    the     district       court’s

dismissal of his complaint on the ground that he lacked standing

to pursue his claims.              In his complaint, Miller alleged that

Montgomery       County,       Maryland    (the      County)       and   certain     County

employees        and     administrative            agencies        (collectively,       the

Defendants) 1 wrongfully denied an application for an exemption

from the County’s Forest Conservation Law relating to certain

trees     that   Miller        intended    to      harvest     under     a   contract    he

executed with a landowner.

      The   district       court    determined,         among      other     things,   that

Miller did not suffer an “injury in fact” from the denial of the

application because the landowner, rather than Miller, was the

person who signed the application and the accompanying documents

in support of the application.                     Upon our review, we hold that

the     district       court    correctly          concluded    that       Miller    lacked

standing     and,       therefore,        we       affirm    the     district       court’s

judgment.

      1
        The Defendants named in Miller’s complaint included:
Montgomery County, Maryland; County Executive Isiah Leggett;
Robert   Hoyt,   director   of    the   County’s  Department  of
Environmental   Protection;    Stan   Edwards,   Chief   of  the
Department’s Environmental Policy and Compliance Division; Laura
Miller, the County Arborist; the Maryland-National Capital Park
and Planning Commission; Rollin Stanley, the Commission’s
Planning Director; and Mark Pfefferle, the Commission’s Forest
Conservation Program Director.



                                               3
                                             I.

       Miller      entered     into    a    contract       (the    contract)     with    Dr.

Charles      Mess    to    purchase    and        harvest    timber    from     584    trees

located       on    Dr.    Mess’     property       in     the    County     (the     timber

harvesting operation).              The contract required Miller to comply

with all federal, state, and county regulations governing timber

harvesting.          The    contract       further       provided     that     Miller    was

ultimately responsible for obtaining all permits necessary to

harvest the timber.

       Under the Montgomery County Code, the harvesting of trees

is     subject      to     certain     regulatory           provisions       (the     Forest

Conservation Law).             However, a qualifying “commercial logging

and timber harvesting operation” may obtain an exemption from

the Forest Conservation Law. 2                Montgomery County Code § 22A-5(d)

(the       exemption).         To   qualify        for   the      exemption,    a     timber

harvesting         operation    must       meet    three     requirements:          1)   the

property on which such an operation is conducted will not be

subject       to    development        for    five       years      after     the     timber

harvesting occurs; 2) a sediment control permit must be obtained

       2
        The term “commercial logging [and] timber harvesting
operation” is defined in the Montgomery County Code as the
“cutting and removing of tree stems from a site for commercial
purposes, leaving the root mass intact.” Montgomery County Code
§ 22A-3.      There are numerous exemptions to the Forest
Conservation Law other than the “commercial logging and timber
harvesting” exemption, none of which are at issue in this case.



                                              4
before conducting the operation; and 3) the County must approve

any timber harvesting operation pursuant to a determination by

the County Arborist “that the logging or timber harvesting plan

is not inconsistent with County forest management objectives and

is otherwise appropriate.”    Id.

      Although the contract specified that Miller was responsible

for   obtaining   the   necessary   permits,   Dr.   Mess   signed   the

applications and associated documents relating to the exemption.

These documents included the following:

      1) The application for the “Forest Conservation Plan
      Exemption,” signed by Dr. Mess, listing Dr. Mess as
      the   sole   “applicant”     for the exemption,  and
      identifying the name of the plan as the “Charles F.
      Mess Timber Harvest” plan; 3

      2) A sworn, notarized “Forest Declaration of Intent,”
      signed by Dr. Mess, in which he pledged not to develop
      his property for five years, pursuant to the first
      requirement for obtaining an exemption;

      3) A sworn, notarized “Forest Conservation Ordinance
      Declaration of Intent for Forestry Activities,” signed
      by    Dr.   Mess,    making   certain    promises    and
      representations   concerning   the  timber    harvesting
      operation and Dr. Mess’ future use of his land;

      4) The application for a “Sediment Control Permit,”
      signed by   Dr.   Mess, a  necessary  step  towards




      3
       On this application, there was a section providing for an
additional “contact person.”    The completed application listed
Vincent H. Berg, a consultant hired by Miller, as the additional
contact person, rather than Miller himself.



                                    5
     satisfying the     second   requirement   for   obtaining   an
     exemption; 4 and

     5) A “Compliance Agreement for the Standard Erosion
     and   Sediment   Control   Plan  for   Forest  Harvest
     Operations” (the Compliance Agreement), signed by Dr.
     Mess, in which he agreed to allow inspectors a right
     of entry onto his land to monitor the operation’s
     compliance with County regulations, and in which Dr.
     Mess affirmed that it was his responsibility as
     property owner to prevent accelerated erosion and
     sedimentation during and after the operation; Miller
     signed this document on the signature block for the
     “Operator” of the timber harvest operation.

     Additionally, several documents were submitted on Dr. Mess’

behalf by William V. Brumbley, a registered forester hired by

Dr. Mess, including:

     1)   A  “Forest   Management  and   Stewardship  Plan,”
     submitted for “Charles F. Mess, Et Al, Trustees,” by
     Brumbley, to the County Arborist at her request; and

     2) An application for a “Timber Harvest Exemption”
     submitted   by  Brumbley  to  the  County  Arborist,
     containing information that the County Arborist had
     requested from Dr. Mess.

     The County Arborist declined to approve the timber harvest

plan on the ground that the plan did not satisfy the County’s

“forest   management    objectives.”      Almost     all   the   written

correspondence concerning the County Arborist’s rejection of the

timber harvest plan was exchanged between her and either Dr.




     4
        The application for the Sediment Control Permit               was
approved, and the permit was issued to Dr. Mess in his name.



                                   6
Mess or Brumbley. 5    Because the County Arborist did not approve

Dr. Mess’ timber harvest plan, the timber harvesting operation

did not qualify for an exemption from the County.

      Although the documents signed by Dr. Mess contained only a

few references to Miller, Miller undertook certain acts to help

obtain    the   necessary   approvals   of   Dr.   Mess’   applications.

According to Miller, he participated in the application process

by:

      1) Paying the required permit fees;

      2) “Walking [Dr. Mess’] property” with Berg, Miller’s
         consultant, to obtain certain information required
         by the County in its permitting process;

      3) Meeting with County officials to discuss the merits
         of   the  timber   harvest  application  after  the
         application was denied;

      4) Signing the Compliance Agreement as the “Operator”
         of the timber harvest operation; and

      5) Sending an email through his consultant to the
         Maryland-National   Capital   Park   and   Planning
         Commission (the Commission) seeking a meeting to
         discuss the County Arborist’s decision, an action
         that Miller characterizes as his “attempt[] to file
         an administrative appeal.”




      5
       Additionally, an April 2009 email was sent from Berg,
Miller’s consultant, to Candy Bunnag, the Environmental Planner
for the Maryland-National Capital Park and Planning Commission.
In this email, Berg requests that the Commission schedule a
meeting to discuss the County Arborist’s refusal to approve the
Timber Harvest Plan.



                                   7
It is undisputed, however, that all the necessary applications

were signed by Dr. Mess and were submitted in his name, and that

only one of those documents contained a reference to Miller.

     On November 23, 2009, Miller filed a complaint against the

Defendants in the United States District Court for the District

of Maryland, contending that the Defendants wrongfully denied

the application for an exemption to conduct the timber harvest

operation.   Miller later filed an amended complaint against the

Defendants asserting eleven causes of action under state and

federal law, including causes of action for violations of the

Due Process and Equal Protection Clauses of the United States

Constitution,   the   Takings   Clauses   of   the   United   States   and

Maryland Constitutions, and several common law torts. 6         Notably,

Dr. Mess did not join Miller’s lawsuit and is not a party in

this case.

     6
       The eleven counts in the amended complaint include claims
for: equal protection, in violation of the Fourteenth Amendment
to the United States Constitution and 42 U.S.C. § 1983 (Count
I); substantive due process, in violation of the Fourteenth
Amendment and 42 U.S.C. § 1983 (Count II); procedural due
process, in violation of the Fourteenth Amendment and 42 U.S.C.
§ 1983 (Counts III, IV, and V); unlawful taking of property, in
violation of the Fifth Amendment and 42 U.S.C. § 1983, and the
Maryland State Constitution (Count VI and VII), and several
state common law tort claims, including tortious interference
with contractual relations (Count VIII), conspiracy to commit
tortious interference with contractual relations (Count IX),
tortious interference with prospective economic relationships
(Count X), and conspiracy to commit tortious interference with
prospective economic relationships (Count XI).


                                   8
     The Defendants filed a motion seeking to dismiss Miller’s

complaint    under   Rule        12(b)(6)     of    the     Federal    Rules       of   Civil

Procedure.     In their motion, the Defendants argued that Miller

lacked standing to pursue the federal and state constitutional

claims,   because        Dr.    Mess   was       not   a     party    to    the    lawsuit.

Addressing the claims asserted under the Takings Clauses, the

Defendants contended that Miller lacked standing to pursue those

claims    because    he        did   not    apply      for    the     exemption.         The

Defendants    also       contended     that       Miller      could    not    pursue     his

claims under the Due Process Clause, because he had only an

expectation    of    a    protected        property        interest    in    the    subject

matter,   rather     than       an   existing      protected        property      interest.

The district court agreed with the Defendants’ arguments and

granted their motion to dismiss.                 Miller timely noted an appeal. 7



                                            II.

     We review de novo the district court’s decision granting

the Defendants’ motion to dismiss and, in conducting our review,

we assume as true all well-pleaded facts and draw all reasonable

inferences in favor of the plaintiff.                      Nemet Chevrolet, Ltd. v.

     7
       Additionally, the Defendants argued, and the district
court agreed, that Miller’s complaint failed to state a claim
for which relief could be granted with respect to the state
common law tort claims.    Miller has not appealed the district
court’s dismissal of his common law tort claims.



                                             9
Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009).

However, we will not accept as true any unwarranted inferences

or unreasonable conclusions.          Id.

     We first address Miller’s argument that the district court

erred in holding that he lacked standing to pursue this action

independently of Dr. Mess.            The requirement of standing is a

threshold       requirement    implicating       the     jurisdiction   of     the

federal courts, and is “perhaps the most important” condition

for a justiciable claim.            Allen v. Wright, 468 U.S. 737, 750

(1984).        The standing inquiry ensures that a plaintiff has a

sufficient personal stake in a dispute to render its judicial

resolution appropriate.        See id. at 750-51.

     To     meet     the    minimum     constitutional       requirements      for

standing, a plaintiff must establish three elements: (1) that

the plaintiff has sustained an injury in fact; (2) that the

injury is traceable to the defendants’ actions; and (3) that the

injury likely can be redressed by a favorable judicial decision.

Friends of the Earth, Inc. v. Gaston Copper Recycling Corp., 629

F.3d 387, 396 (4th Cir. 2011) (citing Lujan v. Defenders of

Wildlife,      504   U.S.   555,   560-61     (1992)).      To   demonstrate      an

injury    in    fact,   a   plaintiff    must    suffer    an    invasion    of    a

legally-protected interest that is concrete and particularized,

as well as actual or imminent.               Id. (citing Lujan, 504 U.S. at

560).

                                        10
     In the present case, Miller has failed to establish that he

suffered     an      “injury        in   fact.”         The    gravamen       of    Miller’s

complaint is the Defendants’ failure to grant the application

for an exemption from the Forest Conservation Law.                             However, it

was not Miller who made this application.                          As stated above, the

sole applicant was Dr. Mess, who signed the application for the

Forest Conservation Plan Exemption.                     Additionally, Dr. Mess, not

Miller, signed the Forest Declaration of Intent, applied for and

received the Sediment Control Permit issued only in Dr. Mess’

name, and signed the Forest Conservation Ordinance Declaration

of Intent in which he made certain promises regarding the future

use of his land.              Miller’s       signature        as    “the    Operator”      was

required on only one of the necessary documents, the Compliance

Agreement form, which Dr. Mess also signed as the “Landowner”.

Moreover, by signing all the required documents, Dr. Mess, not

Miller, made various promises and representations concerning the

projected      use      of    Dr.    Mess’    property.            Thus,    any     exemption

allowed by the County would have been granted to Dr. Mess, not

to Miller.

     Because       it    is    undisputed       that     Dr.       Mess    signed    all    the

necessary      documents       comprising         the   exemption          application,     we

agree   with      the    district        court’s    conclusion        that     Miller      “had




                                              11
little to no involvement” in the exemption application process. 8

Thus, the only person in this case aggrieved by the Defendants’

failure to approve the exemption was Dr. Mess.

      We observe that our holding is in accord with the Seventh

Circuit’s decision in Rosenberg v. Tazewell Cnty., 882 F.2d 1165

(7th Cir. 1989), a case presenting analogous facts.                    There, a

landowner entered into a contract with a developer for the sale

of a parcel of land.       Id. at 1166.       The contract was contingent

on the developer’s construction of an energy-generating facility

on the land, which in turn was contingent on obtaining certain

necessary construction permits from state and local authorities.

Id.   The developer submitted an application to the county board

for approval of the proposed facility location, which the board

rejected.     Id. at 1166-67.         Because the county board did not

approve     the   application,    the      sale     of   the    land     was   not

consummated.      Id. at 1167.

      After the county board’s decision, the landowner filed a

lawsuit against the county, alleging similar takings and due

process   clause    violations   as   those    alleged    by    Miller    in   the

present   case.      The   district   court       dismissed    the   landowner’s

      8
       Miller argues that someone in his position is authorized
to file the necessary documents in support of an application for
an exemption.   We conclude that this argument is not relevant
here because even if Miller could have submitted such documents,
the fact is that he did not do so.



                                      12
lawsuit on standing grounds, holding that the landowner lacked

standing because his contract with the developer “gave rise only

to an expectation that the agreement would be consummated.”                   Id.

at   1167.    The    Seventh     Circuit    affirmed    the   district    court’s

holding, concluding that the county board’s rejection pertained

only to the applicant, in that case the developer, not to the

landowner who had failed to join in the application, and that

the landowner failed to meet the “injury in fact” requirement to

establish standing.      Id. at 1169.

      In this case, Miller stands in a similar position to the

landowner    in     Rosenberg,    because     they     each   filed   a   lawsuit

complaining about the denial of a permit for which they did not

apply.    Thus, consistent with the reasoning articulated by the

Seventh Circuit, Miller failed to satisfy the “injury in fact”

requirement and lacked standing to pursue this action because

the Defendants rejected Dr. Mess’ application, not Miller’s. 9

See id.


      9
       Additionally, the district dismissed Miller’s due process
claims for lack of standing on the ground that he did not have a
constitutionally-protected property interest. We agree with the
district court’s conclusion, because Miller’s right to harvest
the timber was contingent on securing the required permits
issued at the discretion of the County Arborist.    Thus, Miller
merely had an expected, rather than an existing, property
interest, which was insufficient to support either a substantive
or procedural due process claim.       See Gardner v. City of
Baltimore Mayor and City Council, 969 F.2d 63, 68 (4th Cir.
1992) (holding that “[a]ny significant discretion conferred”
(Continued)
                                       13
       We next address Miller’s argument that he had standing to

bring this action under the third-party standing doctrine.               The

doctrine of third-party standing allows a plaintiff to bring an

action on behalf of a third party, alleging an injury sustained

by that third party, under certain circumstances in which the

third party cannot effectively protect its own interests.                  A

Helping Hand, LLC v. Baltimore Cty., 515 F.3d 356, 363 n.3 (4th

Cir.    2008).    In     order   to   maintain   third-party   standing,   a

plaintiff must establish the following three requirements: (1)

an     injury-in-fact;     (2)   a    close   relationship     between   the

plaintiff and the person whose right is being asserted; and (3)

a hindrance to the third party’s ability to protect his or her

own interests.     Freilich v. Upper Chesapeake Health, Inc., 313

F.3d 205, 215 (4th Cir. 2002) (citing Powers v. Ohio, 499 U.S.

400, 410-11 (1991)).




upon a government agency in considering a request for a permit
or an approval defeats a claim of a property interest in the
permit or approval.); Phelps v. Housing Auth. of Woodruff, 742
F.2d 816, 823 (4th Cir. 1984) (a contingent or expected property
interest, in contrast to an entitlement to a property interest,
does not “rise to the level” of a constitutionally protected
property interest for due process purposes).     However, because
we hold that all Miller’s constitutional claims failed in view
of his inability to establish an “injury in fact,” this
additional basis supporting the dismissal of Miller’s due
process claims does not merit further explanation.



                                       14
       We need not address the first two requirements of this test

because it is manifest that Miller cannot establish the third

required element, namely, any “hindrance to [Dr. Mess’] ability

to protect his[] own interests.”                Id.     Regarding this third

requirement, Miller does not identify, nor can we discern from

this record, any hindrance to Dr. Mess’ ability to protect his

interests in his own property and in the permit applications

that he submitted.      Dr. Mess could have filed his own lawsuit or

could have joined in Miller’s lawsuit, but Dr. Mess did not take

such    action.      Therefore,   we    hold     that    the   district      court

correctly determined that Miller was not entitled to pursue his

claims under a theory of third-party standing.



                                     III.

       In conclusion, we hold that the district court did not err

in     determining   that   Miller     lacked     standing     to   pursue    his




                                       15
constitutional   claims   against   the   Defendants.   Therefore,   we

affirm the district court’s judgment. 10

                                                             AFFIRMED




     10
        We reject Miller’s request, made for the first time in
his reply brief, to reverse the district court’s order and grant
Miller leave to file a second amended complaint adding Dr. Mess
as a plaintiff.   Because Miller did not file a motion seeking
this relief in the district court, nor did he seek such relief
in his initial appellate brief, we will not consider his
request.   See Edwards v. City of Goldsboro, 178 F.3d 231, 241
n.6 (4th Cir. 1999) (claim not properly raised in appellant's
opening brief is deemed abandoned); Cavallo v. Star Enter., 100
F.3d 1150, 1152 n. 2 (4th Cir. 1996) (argument not raised in
opening brief, but raised for first time in reply brief, is
waived).



                                    16
