Judge Henley died on October 18, 1997. This opinion is consistent with his

1

vote at the panel’s conference following oral argument of the case on September 12,

1997.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1530

___________

Berger Levee District, Franklin *

County, Missouri, *

Appellant, * District Court for the

 v. *

United States of America, *

Appellee. *

* Appeal from the United States

* Eastern District of Missouri

*

*

___________

Submitted: September 12, 1997

Filed: October 31, 1997

___________

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge , and MORRIS

1

SHEPPARD ARNOLD, Circuit Judge.

___________

BOWMAN, Circuit Judge.

Berger Levee District appeals from the order of the District Court

granting the Government’s motion to dismiss the Levee District’s action to

collect the unpaid balance of local levee and maintenance taxes assessed

on property purchased by the Government in September 1995. Because we

conclude that the District Court lacked
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jurisdiction to entertain this action, we vacate the District Court’s order

dismissing the Levee District’s action for failure to state a claim and

remand the case for dismissal for lack of jurisdiction. 

I.

The Berger Levee District was incorporated under Missouri law in

1968. See Mo. Rev. Stat. §§ 245.010(1), 245.015 (1994). The Levee

District’s board of supervisors proposed to the Missouri circuit court a

“plan for reclamation” outlining the Levee District’s land improvement

strategy, which was subsequently approved by the court’s appointed

commissioners. See id. §§ 245.095, 245.105, 245.150. After receiving

approval of the plan, the Levee District’s board of supervisors imposed a

$1.8 million “levee tax” upon the affected land proportionate to each

parcel’s share of the reclamation plan’s benefit. Id. § 245.180(1). The

levee tax was exacted to repay a $950,000 twenty-year bond issue, plus

interest, passed in 1977 to finance the construction of the reclamation

project. See id. §§ 245.230, 245.180(3). The levee taxes are paid by the

affected property owners in installments that are determined and collected

annually. The board of supervisors is also empowered to assess

“maintenance taxes” to pay for the reclamation project’s upkeep which are

likewise determined and assessed each year. See id. § 245.195.

For the 1995 tax year, the board of supervisors assessed the annual

levee and maintenance taxes against all real property within the district,

including five parcels purchased by the United States Corps of Engineers

on September 27, 1995. The total amount of tax levied by the board against

these parcels for 1995 was $4,720.62, of which the Government paid

$3,491.96--the annual tax allocable to the real property before the

Government’s purchase. The United States did not pay the $1,228.66 balance

allocable to the property after the Government’s purchase. 
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The Levee District commenced this action against the United States

in federal district court to collect the unpaid balance of the 1995 levee

and maintenance taxes, plus penalties. The Government moved to dismiss the

action under Federal Rule of Civil Procedure 12(b)(6) for failure to state

a claim upon which relief could be granted, arguing that the United States

was immune from state or local taxation under the Supremacy Clause of the

Constitution. See U.S. Const. art. VI, § 2. Neither the parties nor the

District Court considered the jurisdictional issue. Rather, the District

Court granted the Government’s motion to dismiss the Levee District’s

complaint based on its failure to state a claim, holding that the

constitutional tax immunity of the United States extended to the Levee

District’s “special assessments.” The Levee District’s motion to alter or

amend the District Court’s order was denied, and this appeal followed. 

The Levee District argues that the District Court erred in

characterizing the levee and maintenance assessments as “taxes” and in

finding that the United States is immune from payment of these obligations

on the affected land. We decline to address these issues, however, because

we conclude that, despite the Levee District’s assertion that 28 U.S.C. §

1331 (1994) supplies the jurisdictional gateway into federal court, the

District Court should have dismissed the Levee District’s complaint for

lack of jurisdiction. 

II.

In this appeal, the United States contends for the first time that

the District Court was without jurisdiction to consider the merits of the

Levee District’s complaint. The Government argues that the Levee District

failed to allege on the face of its complaint any federal statute or other

basis for the District Court’s jurisdiction. The Levee District counters

that “federal question” jurisdiction under 28 U.S.C. § 1331 provided the

District Court with proper jurisdiction over the action. 
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Although the jurisdictional issue was not raised before the District

Court, the question of a court’s jurisdiction over an action is nonwaivable and may be raised at any point in the litigation. See Bueford v.

Resolution Trust Corp., 991 F.2d 481, 485 (8th Cir. 1993) (“Lack of subject

matter jurisdiction, unlike many other objections to the jurisdiction of

a particular court, cannot be waived. It may be raised at any time by a

party to an action, or by the court sua sponte.”); Fed. R. Civ. P. 12(h)(3)

(“Whenever it appears by suggestion of the parties or otherwise that the

court lacks jurisdiction of the subject matter, the court shall dismiss the

action.”). Consequently, we must consider the Government’s argument that

the District Court lacked jurisdiction to consider the Levee District’s

complaint.

Federal district courts have been granted original jurisdiction over

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

United States.” 28 U.S.C. § 1331. Whether a civil action “arises under”

federal law is determined by the “well-pleaded complaint” rule. See

Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (“The presence or

absence of federal-question jurisdiction is governed by the ‘well-pleaded

complaint rule,’ which provides that federal jurisdiction exists only when

a federal question is presented on the face of the plaintiff’s properly

pleaded complaint.”); Humphrey v. Sequentia, Inc., 58 F.3d 1238, 1242 (8th

Cir. 1995). Federal district courts are empowered by Congress to hear only

those cases in which a plaintiff’s “well-pleaded complaint establishes

either that federal law creates the cause of action or that the plaintiff’s

right to relief necessarily depends on resolution of a substantial question

of federal law.” Franchise Tax Bd. v. Construction Laborers Vacation

Trust, 463 U.S. 1, 27-28 (1983). The Supreme Court has indicated that a

case may arise under federal law “‘where the vindication of a right under

state law necessarily turn[s] on some construction of federal law.’”

Merrell Dow Pharmaceuticals, Inc. v. Thompson, 478 U.S. 804, 808 (1986)

(citing Franchise Tax Bd., 463 U.S. at 9); see also Franchise Tax Bd., 463

U.S. at 13 (noting that federal question jurisdiction is appropriate when

“it appears that some substantial, disputed question of federal law is a

necessary element of one of the well-pleaded state
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claims.”). The potential or probable assertion of a federal defense is

insufficient to confer federal jurisdiction. See Franchise Tax Bd., 463

U.S. at 14; Merrell Dow, 478 U.S. at 808; Phillips Petroleum Co. v. Texaco,

Inc., 415 U.S. 125, 127-28 (1974); Oklahoma Tax Comm’n v. Graham, 489 U.S.

838, 840-41 (1989) (per curiam).

Here, a review of the Levee District’s complaint reveals that it is

grounded solely upon Missouri statutes that authorize the assessment and

collection of levee and maintenance taxes and that it is devoid of any

allegation implicating a federal statute or other substantial federal issue

sufficient to confer jurisdiction upon the District Court. The complaint

alleges that the levee district was properly incorporated under Missouri

law; that the board of supervisors levied a tax on real property located

within the district; that, pursuant to Missouri law, the board of

supervisors assessed both levee and maintenance taxes for the 1995 tax

year; that the state collector is entitled under Missouri law to demand and

collect payment of such taxes from the United States as successor in

interest to real property located within the district; and that unpaid

taxes, interest, and penalties shall constitute a lien against such

property which, under Missouri law, shall be enforced by an action on the

delinquent tax bills. 

The tax here in controversy was imposed solely under the authority of

Missouri statutes. The Levee District is attempting to collect the unpaid

tax from the United States pursuant only to Missouri statutes authorizing

such collection activity. Federal law was first raised by the United States

in its motion to dismiss wherein the Government asserted that it was immune

under the Supremacy Clause from the Levee District’s tax claims. As noted

above, the actual or probable assertion of a federal defense is insufficient

to confer federal jurisdiction upon a district court if the plaintiff’s

well-pleaded complaint fails to implicate a federal statute or a substantial

issue of federal law. “[I]t has long been settled that the existence of a

federal immunity to the claims asserted does not convert a suit otherwise

arising under state law into one which, in the statutory sense, arises under

federal law.” Oklahoma Tax Comm’n, 489 U.S. at 841. Because the Levee

District failed to assert a federal question arising under
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 the Constitution, laws, or treaties of the United States sufficient to

confer jurisdiction on the District Court under 28 U.S.C. § 1331, we

conclude that the District Court was without proper jurisdiction to

entertain the merits of the Levee District’s claim.

III.

For the foregoing reasons, the District Court’s order dismissing the

Levee District’s complaint for failure to state a claim upon which relief

could be granted is vacated and the case is remanded to the District Court

for dismissal for lack of subject-matter jurisdiction.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT