                         United States Court of Appeals
                               FOR THE EIGHTH CIRCUIT
                                   ___________

                                  No. 97-1530
                                   ___________
Berger Levee District, Franklin          *
County, Missouri,                        *
                                         *   Appeal from the United States
            Appellant,                   *   District Court for the
                                         *   Eastern District of Missouri
     v.                                  *
                                         *
United States of America,                *
                                         *
            Appellee.                    *

                                   ___________

                         Submitted: September 12, 1997
                          Filed:      October 31, 1997
                                   ___________

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge1, and MORRIS
     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




      1
        Judge Henley died on October 18, 1997. This opinion is consistent with his
vote at the panel’s conference following oral argument of the case on September 12,
1997.
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 non-
waivable 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




                                    -4-
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




                                    -5-
 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




                                   -6-
