UNPUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


WEBSTER COUNTY LUMBER COMPANY,          
INCORPORATED, a West Virginia
corporation; MINERALS AND LAND,
INCORPORATED, a West Virginia
corporation,
               Plaintiffs-Appellants,
                 v.
LARRY WAYNE, individually; LINDA
WAYNE, individually; JOHN DOE,                   No. 02-1429
individually,
              Defendants-Appellees,
                 v.
GLEN B. GAINER, III, West Virginia
State Auditor and Commissioner of
Delinquent and Nonentered Lands,
                   Party in Interest.
                                        
           Appeal from the United States District Court
       for the Northern District of West Virginia, at Elkins.
             Robert R. Maxwell, Senior District Judge.
                         (CA-99-116-2)

                      Argued: February 26, 2003

                      Decided: March 24, 2003

  Before LUTTIG, WILLIAMS, and MICHAEL, Circuit Judges.



Affirmed by unpublished opinion. Judge Luttig wrote the opinion, in
which Judge Williams and Judge Michael joined.
2              WEBSTER COUNTY LUMBER CO. v. WAYNE
                             COUNSEL

ARGUED: Larry Joseph Rector, STEPTOE & JOHNSON, P.L.L.C.,
Clarksburg, West Virginia, for Appellants. William Tracey Weber,
Jr., WEBER & WEBER, Weston, West Virginia, for Appellees.
ON BRIEF: Amy M. Smith, Randall C. Light, STEPTOE & JOHN-
SON, P.L.L.C., Clarksburg, West Virginia, for Appellants. W. T.
Weber, III, WEBER & WEBER, Weston, West Virginia; Howard J.
Blyler, Cowen, West Virginia, for Appellees.



Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).


                             OPINION

LUTTIG, Circuit Judge:

   Appellants Webster County Lumber Company, Inc., and Minerals
and Land, Inc., brought suit in district court against appellees Larry
Wayne, Linda Wayne, and a John Doe. In Count I of the complaint,
appellants requested a declaratory judgment, pursuant to the Declara-
tory Judgment Act, 28 U.S.C. § 2201 et seq., that a tax sale and the
issuance of tax deeds to appellees violated the Due Process Clause of
the Fourteenth Amendment. In Count II, the plaintiff-appellants
alleged trespass and sought treble damages pursuant to W. Va. Code
§ 61-3-48a. The district court dismissed both counts for lack of juris-
diction. We affirm.

                                  I.

   On October 11, 1996, the Deputy Commissioner of Delinquent and
Nonentered Lands of Webster County sold two tracts of land for taxes
delinquent from 1937 to 1997 (the "Tax Sale"). By deeds dated March
26, 1997 (the "Tax Deeds"), the Deputy Commissioner conveyed the
tracts to Larry and Linda Wayne. The only notice provided with
respect to the Tax Sale was a short report published in the Webster
                  WEBSTER COUNTY LUMBER CO. v. WAYNE                          3
Republican (presumably a local newspaper) directed to the heirs,
devisees, etc. of one J.C. Savage and one M.M. Savage. Some time
after the conveyance of the Tax Deeds, the Waynes and the John Doe
cleared portions of one of the tracts by cutting trees and marketable
timber for the purpose of establishing a roadway and a site for the
construction of a building.

   On September 3, 1999, appellants, claiming that they were the
owners of the tracts before the Tax Sale, filed a complaint in the fed-
eral district court for the Northern District of West Virginia. In Count
I of the complaint, appellants requested, pursuant to the federal
Declaratory Judgment Act, 28 U.S.C. § 2201 et seq., a declaration
that the Tax Deeds were invalid and not legally binding, because "the
Tax Sale and the resulting Tax Deeds violate[d] [appellants’] due pro-
cess rights governed by the Fourteenth Amendment to the United
States Constitution," as "[appellants] [were] not given notice prior to
the sale." J.A. 12. In Count II, appellants brought a state law trespass
claim against appellees pursuant to W. Va. Code § 61-3-48a, and
requested treble damages for unlawful timbering activities.

   Appellees, in their answer to the complaint, moved to dismiss pur-
suant to Fed. R. Civ. P. 12(b)(1), for lack of subject matter jurisdic-
tion. The district court granted this motion, and appellants appealed.

                                       II.

   Since "federal courts are courts of limited jurisdiction, constrained
to exercise only the authority conferred by Article III of the Constitu-
tion and affirmatively granted by federal statute," Cooper v. Produc-
tive Transp. Servs., 

, 352 (4th Cir. 1998) (quotations
omitted), jurisdiction in federal court exists only if appellants can
identify a statutory grant of jurisdiction for their claims. Appellants
maintain that jurisdiction over the claim asserted in Count I of their
complaint exists under 28 U.S.C. § 1331, which states that "[t]he dis-
trict courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States." Appel-
lants maintain that jurisdiction over the claim asserted in Count II
exists under 28 U.S.C. § 1367.1 Appellants admit that if jurisdiction
  1
   28 U.S.C. § 1367 provides that
      in any civil action of which the district courts have original juris-
4               WEBSTER COUNTY LUMBER CO. v. WAYNE
were improper for Count I, then no jurisdiction would exist for Count
II. Hence, we need consider only whether jurisdiction exists in federal
court over Count I.

   Count I, as noted, requests a declaratory judgment under the federal
Declaratory Judgment Act. In Skelly Oil Co. v. Philips Petroleum Co.,

(1950), the United States Supreme Court explained the
jurisdictional reach of the Declaratory Judgment Act as follows:
"Congress enlarged the range of remedies available in the federal
courts but did not extend their jurisdiction. . . . The Declaratory Judg-
ment Act allowed relief to be given by way of recognizing the plain-
tiff’s right even though no immediate enforcement of it was asked.
But the requirements of jurisdiction — the limited subject matters
which alone Congress had authorized the District Courts to adjudicate
— were not impliedly repealed or modified." 

the
"plaintiff’s claim itself must present a federal question unaided by
anything alleged in anticipation or avoidance of defenses which it is
thought the defendant may interpose." 

and cita-
tions omitted).

   The Court later declared that "Skelly Oil has come to stand for the
proposition that if, 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." Franchise Tax Board v. Con-
struction Laborers Vacation Trust, 

, 16 (1983).2 Accord-

     diction, the district courts shall have supplemental jurisdiction
     over all other claims that are so related to claims in the action
     within such original jurisdiction that they form part of the same
     case or controversy under Article III of the United States Consti-
     tution.
  2
    Of course, if the federal claim could have arisen as part of a coercive
action brought by the declaratory judgment defendant against the declar-
atory judgment plaintiff, it is certainly possible that federal jurisdiction
exists, see Columbia Gas Transmission Corp. v. Drain, 

,
370-71 (4th Cir. 2001), although not guaranteed, see Franchise Tax

(concluding that although declaratory-
judgment defendant could have brought a federal action raising the fed-
eral issue in question against the declaratory-judgment plaintiff, the
action in question did not "arise under" federal law for purposes of
§ 1331).
                WEBSTER COUNTY LUMBER CO. v. WAYNE                      5
ingly, in the case before us, in order for jurisdiction over Count I to
exist, it must have been possible to assert appellants’ federal claim in
a federal cause of action brought by either party against the other, or
in a state cause of action where a substantial federal issue would
appear on the face of a well-pleaded complaint. See Merrell Dow
Pharmaceuticals Inc. v. Thompson, 

, 808-09 (1986)
(jurisdiction proper under 28 U.S.C. § 1331 where federal law created
the cause of action, or in some cases where "the vindication of a right
under state law necessarily turned on some construction of federal
law"); 

issue in state cause of action must be suffi-
ciently "substantial" for § 1331 jurisdiction to exist); Franchise Tax

(whether a claim arises under federal law
must be determined in reference to the "well-pleaded complaint").3

   Appellants’ federal claim is that issuance of the Tax Deeds, with-
out constitutionally-appropriate notice of the Tax Sale, violated the
Due Process Clause of the Fourteenth Amendment. One labors in vain
to ascertain how this claim would arise (but for the Declaratory Judg-
ment Act) between these parties in any form other than as a defense
to a state created action. Appellants point to no statutory federal cause
of action that could provide the basis for any coercive action by
appellants or appellees, nor to any state cause of action where this
federal issue could form a substantial and necessary component. The
only potential source for any cause of action mentioned in appellants’
briefs or complaint is the Due Process Clause of the Fourteenth
Amendment. See, e.g., Appellants’ opening brief at 12-13 ("There can
be no dispute that in this action [jurisdiction exists] because the crux
of Appellants’ claim against Appellees involves alleged violations of
the due process clause of the United States Constitution and it is the
constitution that creates Appellants’ cause of action.") (emphasis
added). Leaving aside for the moment the difficult question of
whether an implied right of action exists against any entity under the
Fourteenth Amendment (a question unaddressed by either party), see,
  3
   The only statutory sources of jurisdiction stated in the complaint and
argued before the district court and on appeal by appellants are § 1331
and § 1367. We thus analyze whether jurisdiction is appropriate only
under these provisions. See Merrell 

n.6
("Jurisdiction may not be sustained on a theory that the plaintiff has not
advanced.").
6               WEBSTER COUNTY LUMBER CO. v. WAYNE
e.g., Weller v. Dep’t of Social Services, 

, 398 (4th Cir.
1990) (no implied right of action under Due Process Clause of the
Fourteenth Amendment against municipalities for damages for acts of
its employees), it has been well-established for over a century that the
Fourteenth Amendment restrains or controls only state actors, not pri-
vate actors. See Civil Rights Cases, 

, 11 (1883) ("It is State
action of a particular character that is prohibited. Individual invasion
of individual rights is not the subject-matter of the amendment"); see
also United States v. Morrison, 

, 621 (2000) (noting "the
time-honored principle that the Fourteenth Amendment, by its very
terms, prohibits only state action"); Shelley v. Kraemer, 

,
13 (1948) ("[The Fourteenth Amendment] erects no shield against
merely private conduct, however discriminatory or wrongful."). As
only a state actor can violate the Fourteenth Amendment, a fortiori
no implied right of action under the Fourteenth Amendment would
exist against private citizens. And, prior to oral argument, appellants
made no suggestion that either they or appellees were anything but
private citizens.4

   It is clear that the federal claim in question would arise only in
response to a state-created action, either as a defense to a state law
claim (such as trespass or some variant of a quiet title action) brought
by appellees, or to respond to appellees’ invocation of the Tax Deeds
to defend against appellants’ trespass action. Thus, Skelly Oil bars
jurisdiction in federal court over the declaratory judgment action. As
there is no federal jurisdiction over Count I, 28 U.S.C. § 1367 can
provide no basis for jurisdiction over Count II. As there is no federal
jurisdiction over either count, the district court properly dismissed
appellants’ suit.
    4
    For the first time, at oral argument, appellants raised the claim that
appellees were perhaps state actors. This argument was not made in
appellants’ opening brief, nor was this argument raised in the district
court. We will thus not consider it at this stage in the proceedings. See
Holland v. Big River Minerals Corp., 

, 605 (4th Cir. 1999)
(issues not raised in district court will generally not be considered on
appeal); Muth v. United States, 

, 250 (4th Cir. 1993) (same);
see also Carter v. Lee, 

, 252 n.11 (4th Cir. 2002) (conten-
tions not raised in the opening brief generally considered waived).
               WEBSTER COUNTY LUMBER CO. v. WAYNE                    7
                           CONCLUSION

   For the reasons stated herein, the judgment of the district court is
affirmed.

                                                          AFFIRMED