UNPUBLISHED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 
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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Vacated and remanded by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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.,
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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 
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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, 
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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 
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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-ofway 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 

.
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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 
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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