## Judge Henley died on October 18, 1997. This opinion is consistent with hi s 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 B OWMAN, Circuit Judge, HENLEY, Senior Circuit Judge , and MORRI S 1 SHEPPARD ARNOLD, Circuit Judge.

___________ BOWMAN, Circuit Judge.
Berger L evee District appeals from the order of the District Cour t 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 pr operty purchased by the Government in September 1995. Because w e conclude that the District Court lacked

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jurisdiction to entertain this action, we vacate the District Court’s orde r dismissing the Levee District’s action for failure to state a claim an d remand the case for dismissal for lack of jurisdiction.

I.

The Berger Levee District was incorporated under Missouri law i n 1968. Se e Mo. Rev. Stat. §§ 245.010(1), 245.015 (1994). The Leve e District’s board of supervisors proposed to the Missouri circuit court a “pla n for reclamation” outlining the Levee District’s land improvemen t strategy, which was subsequently approved by the court’s appointe d commissioners. See id. §§ 245.095, 245.105, 245.150. After receivin g approval of the plan, the Levee District’s board of supervisors imposed a $1.8 mi llion “levee tax” upon the affected land proportionate to eac h 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, plu s int erest, passed in 1977 to finance the construction of the reclamatio n project. See id. §§ 245.230, 245.180(3). The levee taxes are paid by th e affected property owners in installments that ar e determined and collected annually. The board of supervisors is also empowered to asses s “maintenance taxes” t o pay for the reclamation project’s upkeep which are likewise determined and assessed each year. See id. § 245.195.

For the 1 995 tax year, the board of supervisors assessed the annual levee and maintenance taxes against all real pro perty 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 agains t these pa rcels for 1995 was $4,720.62, of which the Government pai d $3,491 .96--the annual tax allocable to the real property before th e Government’s purchase. The United States did not pay the $1,228.66 balanc e allocable to the property after the Government’s purchase.

## -3- The Levee District commenced this action against the United State s in federal district c ourt to collect the unpaid balance of the 1995 levee and maintenance taxes, plus penalties. The Government moved to dismiss th e action under Federal Rule of Civil Procedure 12( b)(6) for failure to state a claim upon which relief could be granted, argu ing 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 consid ered the jurisdictional issue. Rather, the District Court granted the Government’s motion to dismiss the Levee District’ s complain t based on its failure to state a claim, holding that th e constitutional tax immunity of the United States extended to the Leve e District’s “special assessments.” The Levee Dis trict’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 i n charac terizing the levee and maintenance assessments as “taxes” and i n finding that the United States is immune from pa yment of these obligations
on the affected land. We decline to address these issues, however, becaus e we conclude that, des pite the Levee District’s assertion that 28 U.S.C. § 1331 ( 1994) supplies the jurisdictional gateway into federal court, th e Distri ct Court should have dismissed the Levee District’s complaint fo r lack of jurisdiction.

II.

In this appeal, the United States contends for the first time tha t the District Court wa s without jurisdiction to consider the merits of the Levee District’s complaint. The Government argu es that the Levee District failed to allege on the face of its complaint an y federal statute or other basis for the Distric t 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.

## -4- Although the jurisdictional issue wa s not raised before the District Cour t, the question of a court’s jurisdiction over an action is non

waivable and may be raised at any point in the l itigation. See Bueford v. Resolution Trust Corp. , 991 F.2d 481, 485 (8th Cir. 1993) (“Lack of subjec t 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 th e action.”). Consequen tly, we must consider the Government’s argument that the Di strict Court lacked jurisdiction to consider the Levee District’ s complaint.
Federal district courts have been gr anted original jurisdiction over “all civil actions arising under the Constitution, laws, or treaties of th e United States.” 28 U .S.C. § 1331. Whether a civil action “arises under” fede ral law is determined by the “well-pleaded complaint” rule. Se e Caterpillar, Inc. v. Williams , 482 U.S. 386, 392 (1987) (“The presence or absence of federal-qu estion jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that federal jur isdiction exists only when
a federal question is presented on the face of the plaintiff’s properl y pleaded complaint.”); Humphrey v. Sequentia, Inc

. , 58 F.3d 1238, 1242 (8th Cir. 1995). Federal district courts are empowered by Congress to hear onl y thos e cases in which a plaintiff’s “well-pleaded complaint establishe s either that federal law creates the cause of action or that the plaintiff’ s right to relief necessarily depends on resolution of a substantial questio n of fede ral law.” Franchise Tax Bd. v. Construction Laborers Vacatio n 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.’ ” Mer rell Dow Pharmaceuticals, Inc. v. Thompson , 478 U.S. 804, 808 (1986 ) (citing Franchise Tax Bd. , 463 U.S. at 9); see a lso Franchise Tax Bd. , 463 U.S. at 13 (noting th at 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 i s 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 r eview 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 an y allegation implicating a federal statute or other substantial federal issu e 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 withi n the district; that, pursuant to Missouri law, the board o f supervisors assessed both levee and maintenance taxes for the 1995 ta x year; that the state collector is entitled under Missouri law to demand an d coll ect payment of such taxes from the United States as successor i n interest to real property located within the district; and that unpai d taxes, interest, and penalties shall constitute a lien against suc h property which, under Missouri law, shall be enforced by an action on the delinquent tax bills.
The tax here in controversy was i mposed 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 St ates in its motion to dismiss wherein the Governme nt 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 insuffic ient to confer federal jurisdiction upon a district court if the plaintiff’ s well-pleaded complaint fails to implicate a federal statute or a substan tial issue of federal l aw. “[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 u nder federal law .” Oklahoma Tax Comm’n , 489 U.S. at 841. Because the Leve e District failed to assert a federal question arising under

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the Con stitution, laws, or treaties of the United States sufficient t o confer jurisdiction on the District Court under 28 U.S.C. § 1331, w e conclude that the District Court was without proper jurisdiction t o entertain the merits of the Levee District’s claim.

III.

For th e 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 i s 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