                 United States Court of Appeals
                         FOR THE EIGHTH CIRCUIT
                                ___________

                                No. 96-2913
                                ___________

State of Missouri ex rel.          *
Missouri Highway and               *
Transportation Commission,         *
                                   *
           Appellant,              *
                                   *
      v.                           *
                                   *
Michael Cuffley, individually      *
and as the Unit Recruiter of       * Appeals from the United States
the KKK; Knights of the Ku         * District Court for the
Klux Klan, *                       Eastern District of Missouri.
                                   *
           Appellees.              *
                                   *
---------------------------        *
                                   *
Arkansas State Highway             *
Commission; United States of       *
America,                           *
                                   *
           Amici Curiae.           *
                              ___________

                                No. 96-3740
                                ___________

State of Missouri ex rel.           *
Missouri Highway and                *
Transportation Commission,          *
                                    *
           Appellant,               *
                                    *
     v.                             *
                                    *
Michael Cuffley, individually       *
and as the Unit Recruiter of        *
the KKK; Knights of the Ku          *
Klux Klan, *
                                    *
           Appellees.               *
                                   ___________

                     Submitted:    April 14, 1997

                          Filed:   May 7, 1997
                                   ___________

Before BOWMAN, WOLLMAN, and HANSEN, Circuit Judges.
                               ___________


BOWMAN, Circuit Judge.


        Nearly three years ago, Michael Cuffley, a representative of the
Missouri Realm of the Knights of the Ku Klux Klan (the Klan), filed an
application with the Missouri Highway and Transportation Commission (the
State) for the Klan to participate in Missouri’s Adopt-A-Highway program.
The State neither approved nor denied the Klan’s application; instead, the
State filed this action in federal district court, seeking a declaratory
judgment that it was not required to approve the Klan’s application.     The
Klan counterclaimed, seeking a declaratory judgment and a writ of mandamus
ordering the State to allow it to participate in the Adopt-A-Highway
program.    Following discovery, the District Court granted the Klan’s motion
for summary judgment, concluding that “any decision on the part of the
[State] to exclude the Klan’s participation in the Missouri Adopt-A-Highway
Program will be a violation of the Klan’s First Amendment right to free
speech.”    Missouri ex rel. Missouri Highway & Transp. Comm’n v. Cuffley,
927 F. Supp. 1248, 1265 (E.D. Mo. 1996).    The court later awarded attorney
fees to the Klan pursuant to 42 U.S.C. § 1988(b) (1994).


        In this Court, the State challenges the District Court’s decision on
the merits and, in a consolidated appeal, the award of attorney fees to the
Klan.    The parties and amici have submitted extensive briefs, a voluminous
record, and lengthy oral arguments.




                                      -2-
In their eagerness to resolve this dispute, however, the parties--and,
apparently,      the     District     Court--have   overlooked       two   significant
jurisdictional roadblocks.          We conclude that this action involves neither
a properly presented federal question nor a controversy that is ripe for
review.    Accordingly, we vacate the judgment of the District Court and
remand the case with instructions to dismiss it.


                                           I.


     Only a brief recitation of the factual context of this case is
necessary.     The State’s Adopt-A-Highway program is designed to reduce the
State’s litter-control expenses by enlisting volunteers to clean up highway
rights-of-way.      A brochure produced by the State represents that “[a]ny
person, organization, club or governmental agency can adopt a section of
state highway.”        App. at 213.     The State erects a sign acknowledging the
participation of each person or group that adopts a section of highway.


     In May 1994, the Klan applied to participate in the Adopt-A-Highway
program.       It is unclear from the record whether the Klan requested a
specific section of highway, but the parties’ attention eventually centered
on a stretch of Interstate 55 in south St. Louis.              Without approving or
denying the Klan’s application, the State authorized its attorneys in June
1994 to begin this litigation.


     At the time the Klan filed its application, the State had only a
series    of   guidelines    regarding    participation   in   the    Adopt-A-Highway
program.       The only relevant guideline suggested that “individuals or
organizations which historically or presently advocate unlawful violence”
should be excluded from the program.




                                           -3-
App. at 216.       The State later promulgated official regulations governing
the program.       These regulations, which went into effect after the District
Court       took   the   parties’   cross-motions   for   summary   judgment    under
submission, permit the State to exclude applicants whose participation
would be counterproductive to the program; applicants that discriminate on
the basis of race, religion, color, national origin, or disability; and
applicants with a history of unlawfully violent or criminal behavior.             See
Mo. Code Regs. Ann. tit. 7, § 10-14.030(2) (effective July 30, 1995).             For
good measure, the regulations also state that the program “is not intended
as a means of providing a public forum for the participants to use in
promoting name recognition or political causes.”           Id. § 10-14.030(1).


        The District Court concluded that the Klan’s participation in the
Adopt-A-Highway program involved elements of protected speech and that the
program probably constituted a designated or limited public forum.             See 927
F. Supp. at 1254-58.        The court held that the State’s attempt to exclude
the Klan from the program was both content- and viewpoint-based, so that
the State’s action was unconstitutional, regardless of the type of forum.
See id. at 1259-64.        Accordingly, the court granted the Klan’s motion for
summary judgment and entered a declaratory judgment in the Klan’s favor.
See id. at 1265.1




        1
      As the District Court recognized, other courts have reached
conflicting conclusions in similar adopt-a-highway cases. See
Texas v. Knights of the Ku Klux Klan, 58 F.3d 1075 (5th Cir.
1995) (affirming grant of declaratory judgment authorizing state
to deny Klan’s application); Knights of Ku Klux Klan v. Arkansas
State Highway & Transp. Dep’t, 807 F. Supp. 1427 (W.D. Ark. 1992)
(holding that state’s denial of Klan’s application violated
Klan’s constitutional rights).

                                          -4-
        Thus far in this case, the parties have not disputed the subject-
matter jurisdiction of the federal courts.2   Nevertheless, subject-matter
jurisdiction cannot be waived, and it is our duty to raise the issue sua
sponte.     See Insurance Corp. of Ireland v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982); Boatmen’s First Nat’l Bank v. Kansas Pub.
Employees Retirement Sys., 57 F.3d 638, 640 n.4 (8th Cir. 1995); Burris v.
City of Little Rock, 941 F.2d 717, 721 (8th Cir. 1991).


                                    II.


        We begin with the question of statutory jurisdiction.    It has long
been understood that the federal Declaratory Judgment Act, now codified at
28 U.S.C. § 2201 (1994), is a procedural statute, not a jurisdictional
statute.    See Franchise Tax Bd. v. Construction Laborers Vacation Trust,
463 U.S. 1, 15-16 (1983); Skelly Oil Co. v. Phillips Petroleum Co., 339
U.S. 667, 671-72 (1950).   Accordingly, federal jurisdiction is proper only
if this case comes within an express congressional grant of jurisdiction.
Because it is clear from the record that the parties are not of diverse
citizenship, we look to federal-question jurisdiction.     The federal courts
have jurisdiction “of all civil actions arising under the Constitution,
laws, or treaties of the United States.”    28 U.S.C. § 1331 (1994).     This
action quite obviously turns on the First Amendment, but it is not enough
that such a constitutional issue is present in the case.    The “well-pleaded
complaint” rule further limits federal-question jurisdiction to those cases
in which the plaintiff’s own complaint establishes that the action arises
under




        2
      In the preliminary statement required by Fed. R. App. P.
28(a)(2) and 8th Cir. R. 28A(i)(3), the State suggests that the
District Court had jurisdiction of this case pursuant to the
Declaratory Judgment Act, 28 U.S.C. § 2201 (1994). As we explain
below, § 2201 is remedial, not jurisdictional.

                                    -5-
federal law.   See Franchise Tax Board, 463 U.S. at 10; Gully v. First Nat’l
Bank, 299 U.S. 109, 113 (1936); Louisville & Nashville R.R. v. Mottley, 211
U.S. 149, 152 (1908).


     Since this is a suit seeking a declaratory judgment, there is an
additional twist to the jurisdictional inquiry.      Because an action for
declaratory relief is merely a substitute for a more traditional action for
damages or injunctive relief, we must consider whether a well-pleaded
complaint in such a traditional action would present a federal issue.    See
Franchise Tax Board, 463 U.S. at 15-16; Public Serv. Comm’n v. Wycoff Co.,
344 U.S. 237, 248 (1952) (“Where the complaint in an action for declaratory
judgment seeks in essence to assert a defense to an impending or threatened
state court action, it is the character of the threatened action, and not
of the defense, which will determine whether there is federal-question
jurisdiction in the District Court.”) (dictum); Skelly Oil, 339 U.S. at
671-74; 10A Charles Alan Wright et al., Federal Practice and Procedure:
Civil § 2767, at 744-45 (2d ed. 1983) (“[I]f, but for the availability of
the declaratory judgment procedure, the federal claim would arise only as
a defense to a state created action, jurisdiction is lacking.   On the other
hand, if the federal issue would inhere in the claim on the face of the
complaint that would have been presented in a traditional damage or
coercive action, then federal jurisdiction exists over the declaratory
judgment action.”) (footnote omitted).
     We therefore look to see what sort of traditional damage or coercive
action could come out of this standoff between the State and the Klan.    In
so doing, we will sidestep, for the time being, the ripeness problem that
we consider in the next section of this opinion by assuming that the State
had denied the Klan’s application before coming to court.           In such
circumstances, the Klan could bring an action under 42 U.S.C. § 1983
alleging that the




                                    -6-
State       violated   its   First   Amendment   rights   by   preventing    it   from
                                                    3
participating in the Adopt-A-Highway program.           Such a lawsuit, of course,
would arise under federal law and would be within the jurisdiction of the
federal courts.


        Were our inquiry at an end here, we would conclude that this case is
properly in federal court, but there remains one additional issue.                It is
significant that this action was brought by the State; to see why, we must
examine the Supreme Court’s decision in Franchise Tax Board.                That case
involved attempts by the California Franchise Tax Board “to collect unpaid
state income taxes by levying on funds held in trust for the taxpayers
under an ERISA-covered vacation benefit plan.”            Franchise Tax Board, 463
U.S. at 4.        The plan refused to honor the levies, claiming that ERISA
preempted state law and prohibited the plan from complying with the levies.
The Tax Board went to court, seeking a declaratory judgment that its
actions were valid and not preempted by ERISA.4 When the case reached the
Supreme Court, the Court undertook the




        3
      This imaginary exercise requires a further assumption:
that a § 1983 suit by the Klan against the State would be
permissible. See Will v. Michigan Dep’t of State Police, 491
U.S. 58, 64 (1989) (holding that a state is not a “person” for
purposes of § 1983); Quern v. Jordan, 440 U.S. 332, 338-45
(1979) (holding that § 1983 does not abrogate a state’s Eleventh
Amendment immunity). To simplify our inquiry, we shall assume
that a § 1983 action would be permissible despite these potential
difficulties. See Franchise Tax Board, 463 U.S. at 20 & n.21
(avoiding possible difficulties posed by Tax Injunction Act while
undertaking a similar analysis).
        4
      The Tax Board filed its action in state court, and the plan
removed it to federal court. This procedural difference between
Franchise Tax Board and the instant case, which was filed
originally in federal court, is of no matter. With respect to
federal-question cases, the removal jurisdiction and the original
jurisdiction of the federal district courts are coextensive. See
Franchise Tax Board, 463 U.S. at 7-8; 28 U.S.C. § 1441(a)-(b)
(1994).

                                          -7-
sort of analysis we have performed above and determined that ERISA provided
a plan such as the Construction Laborers Vacation Trust with a federal
cause of action to enjoin acts or practices contrary to ERISA.   See id. at
19-20 & n.20.   To this point, then, Franchise Tax Board and our case are
functionally identical:   each is a declaratory action brought by a state
agency in a situation in which the declaratory defendant could have brought
a coercive action in federal court (bearing in mind our assumptions).    In
an ordinary situation, therefore, these declaratory suits would be properly
within the federal-question jurisdiction of the district courts.        The
Supreme Court, however, concluded unanimously that the Tax Board’s suit was
different:
     We have always interpreted what Skelly Oil called “the current
     of jurisdictional legislation since the Act of March 3, 1875,”
     339 U.S., at 673, with an eye to practicality and
     necessity. . . . There are good reasons why the federal courts
     should not entertain suits by the States to declare the
     validity of their regulations despite possibly conflicting
     federal law. States are not significantly prejudiced by an
     inability to come to federal court for a declaratory judgment
     in advance of a possible injunctive suit by a person subject to
     federal regulation. They have a variety of means by which they
     can enforce their own laws in their own courts, and they do not
     suffer if the pre-emption questions such enforcement may raise
     are tested there. The express grant of federal jurisdiction in
     ERISA is limited to suits brought by certain parties . . . as
     to whom Congress presumably determined that a right to enter
     federal court was necessary to further the statute’s purposes.
     It did not go so far as to provide that any suit against such
     parties must also be brought in federal court when they
     themselves did not choose to sue. The situation presented by
     a State’s suit for a declaration of the validity of state law
     is sufficiently removed from the spirit of necessity and
     careful limitation of district court jurisdiction that informed
     our statutory interpretation in Skelly Oil and Gully to
     convince us that, until Congress informs us otherwise, such a
     suit is not within the original jurisdiction of the United
     States courts.




                                   -8-
Id. at 20-22 (footnotes omitted).


     There is a minor distinction between Franchise Tax Board and the
instant case:    that case involved a conflict between a federal statute and
a state statute, while the case at bar presents a conflict between the
federal Constitution and state administrative action.   Nevertheless, we see
no reason why the holding in Franchise Tax Board should not apply to the
case before us.    (Franchise Tax Board may be summarized neatly as holding
that “there is no federal jurisdiction of a suit by a state for a
declaration of the validity of state law even though the party being sued
by the state could have raised the same issue in federal court in an action
for coercive relief.”    13B Charles Alan Wright et al., Federal Practice and
Procedure:      Jurisdiction § 3566, at 97 (2d ed. 1984).)     The reasoning
adopted by the Court in Franchise Tax Board is equally applicable here.
The State is not prejudiced by an inability to sue in federal court before
the Klan decides whether it will challenge the State’s denial of its
application; in fact, should the Klan decide not to sue, the entire
litigation may be avoided.    If the Klan does sue, we see no reason why the
State’s exposure would be any greater for having waited until the Klan came
to court.


     Franchise Tax Board may be based, as the Court recognized, on
“reasons involving perhaps more history than logic,” Franchise Tax Board,
463 U.S. at 4, but whatever its basis, it is binding upon us.5   In the only
case we have located that is even remotely




     5
      Others have criticized the Court more harshly than it
criticized itself. See 13B Wright et al. § 3566, at 96 n.40
(quoting Edward H. Cooper as saying that Franchise Tax Board
“neatly and logically carried out a chain of reasoning that is
simply wrong”).

                                     -9-
similar to the instant case, a federal district court reached the same
conclusion we do today:   a declaratory judgment suit brought by a state to
uphold the constitutionality of its action is not within the federal-
question jurisdiction of the federal courts.    See International Soc’y for
Krishna Consciousness v. City of Los Angeles, 611 F. Supp. 315, 318-19
(C.D. Cal. 1984).6


                                    III.


     Ripeness also presents a problem for the State.      As we have stated,
the State never acted on the Klan’s application, choosing instead to seek
advance court approval of its plans to deny the application.        Because the
critical facts involved in this dispute are hypothetical and speculative,
we conclude that the dispute is not ripe for review, and so the District
Court was without jurisdiction to decide it.


     The   case-or-controversy   requirement   of   Article   III   applies   in
declaratory actions, just as it does in coercive actions.     See Wycoff Co.,
344 U.S. at 242; Ashwander v. Tennessee Valley Auth., 297 U.S. 288, 325
(1936); Marine Equip. Management Co. v. United States, 4 F.3d 643, 646 (8th
Cir. 1993).


     The basic rationale of the ripeness doctrine “is to prevent the
     courts, through avoidance of premature adjudication, from
     entangling   themselves    in   abstract   disagreements   over
     administrative policies, and also to protect the agencies from
     judicial interference until an administrative decision has been
     formalized and its




     6
      The Fifth Circuit’s adopt-a-highway case apparently arose
in the same posture as the case before us. See Texas, 58 F.3d at
1077. Because the opinion in that case contains no mention of
federal-question jurisdiction or ripeness concerns, we do not
consider it to be authoritative on these issues.

                                   -10-
     effects felt in a concrete way by the challenging parties.”

Pacific Gas & Elec. Co. v. State Energy Resources Conservation & Dev.
Comm’n, 461 U.S. 190, 200 (1983) (quoting Abbott Lab. v. Gardner, 387 U.S.
136, 148-49 (1967)).    “The basic inquiry is whether the ‘conflicting
contentions of the parties . . . present a real, substantial controversy
between parties having adverse legal interests, a dispute definite and
concrete, not hypothetical or abstract.’”   Babbitt v. United Farm Workers
Nat’l Union, 442 U.S. 289, 298 (1979) (quoting Railway Mail Ass’n v. Corsi,
326 U.S. 88, 93 (1945)); see also Vorbeck v. Schnicker, 660 F.2d 1260, 1266
(8th Cir. 1981) (noting that only “a definite and concrete controversy”
satisfies the requirements of Article III), cert. denied, 455 U.S. 921
(1982).


     In particular, we may not render “an opinion advising what the law
would be upon a hypothetical state of facts.”       Aetna Life Ins. Co. v.
Haworth, 300 U.S. 227, 241 (1937).    When we are considering “free speech
issues [of] fundamental and far-reaching import,” it is particularly
inappropriate to attempt to decide a case on an “amorphous and ill-defined
factual record.”   Renne v. Geary, 501 U.S. 312, 324 (1991).


     To demonstrate just how academic and abstract the voluminous record
before us is, we summarize the legal arguments offered by the State at
various points in this case:   (1) there is no speech or expressive activity
involved in the Adopt-A-Highway program at all; (2) even if speech is
involved in the program, it is solely the speech of the State; (3) even if
the program does involve expressive activity by participants, the program
is a nonpublic forum, and the State has presented a reasonable, viewpoint-
neutral justification for excluding the Klan; or (4) even if the program
is a limited public forum or a traditional public forum, the State has




                                    -11-
presented            a    compelling       state   interest    for    excluding    the   Klan.      We
recognize, of course, that alternative legal arguments such as these are
likely to be present in any First Amendment dispute, whether ripe or not.


          What is crucial in a First Amendment suit such as this one, however,
are the reasons for the action taken by the state actor, for this type of
First Amendment question is extremely fact-intensive.                         Consider, then, all
of the possible justifications for denying the Klan’s application that have
surfaced in this case:                   (a) the Klan discriminates in its membership on the
basis of race, and a Missouri executive order prohibits the use of any
state facility to promote discriminatory practices; (b) a federal statute
and       a     federal          highway     regulation     require     the   State      to    prevent
discrimination in all of its programs, and the State could lose its federal
funding if the Klan participated in the program; (c) the Klan has a history
of violence, unlawful activity, racial intimidation, and discriminatory
practices; (d) the State does not wish to appear to endorse the Klan’s
message; (e) permitting the Klan to participate and posting the Klan’s name
on    a       sign       would    make    the   State   a   joint    participant   in    the    Klan’s
discriminatory activities, in violation of the Fourteenth Amendment; (f)
Interstate 55 is a route heavily traveled by black students in the St.
Louis area’s voluntary interdistrict busing program, and a sign identifying
the Klan along that route will undermine the operation of the court-ordered
desegregation program; (g) the Klan’s application is in reality an attempt
to legitimize the organization by associating it with the State, or perhaps
an attempt to increase the Klan’s membership; (h) the State will not be
able to provide a safe atmosphere for interstate travel if the Klan
participates in the program, and use of the highways for interstate
commerce and national defense purposes may be impeded; and (i) the State
may




                                                    -12-
exclude an applicant on the basis of the applicant’s beliefs.7    When we add
to this mix the Klan’s arguments that the State’s application process
involves    unconstitutional   standardless    discretion   and    that   any
justification proffered by the State is only a pretext for discrimination
based on the Klan’s stated beliefs, we have something approximating the
broad scope of the arguments presented to the District Court.


     On this wide-open record, the State seeks a declaration that will
somehow enable it to deny the Klan’s application and to bind the Klan to
that decision.   Because we cannot determine what reasons the State actually
will choose to support its denial, however, it is apparent that the most
the State could possibly be entitled to is a declaration that reads, in
essence:   “Provided you select a constitutional justification, you are not
required to approve the Klan’s application.”    As the Supreme Court stated
in Wycoff Co. (in which Wycoff sought a declaration, in no particular
context, that its business constituted interstate commerce), “One naturally
asks, ‘So what?’”   Wycoff Co., 344 U.S. at 244.


     The precise line between ripe actions and premature actions is not
an easy one to draw, see Babbitt, 442 U.S. at 297, but it is clear that
this case is well on the hypothetical, advisory, not-fit-for-decision side
of that line.    A federal court is neither required nor empowered to wade
through a quagmire of what-ifs like the one the State placed before the
District Court in this case. Until the State acts on the Klan’s application
and creates a concrete record for judicial consideration, this dispute is
simply




     7
      This last justification, a rather surprising one, surfaced
in the deposition of a State employee whom the State designated
to speak for it. See App. at 783-84, 833-34. Not surprisingly,
the Klan argues that this admission alone is enough to support
the District Court’s decision.

                                    -13-
not ripe for review.     If the State is unsure how to handle the Klan’s
application, it should seek the advice of its legal staff, not the advice
of a federal judge.


                                      IV.


     Finally, we turn to the question of attorney fees.         Because the
District Court was without jurisdiction to decide the merits of this case,
it was also without jurisdiction to award fees.    See Keene Corp. v. Cass,
908 F.2d 293, 298 (8th Cir. 1990).      In any event, because we order this
case dismissed on jurisdictional grounds, the Klan is not a prevailing
party on the merits.    See id.   Accordingly, the District Court’s award of
fees must be vacated.


                                      V.


     The judgment of the District Court is vacated, and the case is
remanded with instructions to dismiss the action.         The order of the
District Court awarding attorney fees to the Klan is also vacated.


     A true copy.


           Attest:


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




                                     -14-
