The Alaska Dental Society et al v. The Alaska Native Tribal Health Consortium
Order on Motion to Remand, Order on Motion to Stay
UNITED STATES DISTRICT COURT
DISTRICT OF ALASKA
THE ALASKA DENTAL SOCIETY,
THE ALASKA NATIVE TRIBAL
HEALTH CONSORTIUM, et al.,
ORDER FROM CHAMBERS
Motions at Docket
Nos. 14 and 20]
I. MOTIONS PRESENTED
At docket 14, plaintiffs The Alaska Dental Society, The American Dental
Association, Dr. Hones, Dr. Boothe, Dr. Higgins, and Dr. Shaffer (“plaintiffs”) move for
“an order of remand and/or abstention, returning this case to the Superior Court for the
State of Alaska, Third Judicial District at Anchorage.”1 At docket 42, defendant The
Alaska Native Tribal Health Consortium opposes the motion. At docket 67, plaintiffs
The American Dental Association (“ADA”) and Dr. Jones filed their reply. At docket 70,
plaintiffs The Alaska Dental Society (“ADS”), Dr. Boothe, Dr. Higgins, and Dr. Shaffer
filed their reply and joined the reply at docket 67. Oral argument was heard on June 23,
2006. At that time, the court heard and granted plaintiffs’ oral motion to dismiss counts
III and IV of their complaint.
Doc. 14 at 1.
The court’s disposition of the remand issue renders plaintiffs’ motion to stay at
docket 20 moot, so it will be denied. All other pending motions will be remanded for
decision by the State court.
On January 31, 2006, plaintiffs filed a complaint for declaratory and injunctive
relief in Superior Court for the State of Alaska, which named as defendants the Alaska
Native Tribal Health Consortium (“ANTHC”) and Does 1 through 8, who are all dental
health aide therapists (“DHATs”). Plaintiffs’ complaint seeks 1) a declaration that
ANTHC and DHATs are violating Alaska law by engaging in the unlicensed practice of
dentistry and 2) an injunction prohibiting defendants from engaging in the unlicensed
practice of dentistry.
On February 22, 2006, ANTHC removed plaintiffs’ action to federal court
pursuant to 28 U.S.C. § 1441(b), alleging that plaintiffs’ action is founded on a claim or
right arising under the laws and constitution of the United States.2 ANTHC also
asserted that plaintiffs’ complaint was removable under 28 U.S.C. § 1442(a), because “it
is in the nature of a civil action brought against an officer of the United States or a
person acting under the direction of a federal official or agency.”3 Plaintiffs’ motion for
remand is now ripe for decision.
III. STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 1441(a), a defendant may remove to the appropriate
federal district court “[a]ny civil action of which the district courts have original
jurisdiction founded on a claim or right arising under the Constitution, treaties or laws of
the United States.” Section 1442(a) provides for the removal of any civil action
commenced in State court against “any officer (or any person acting under that officer)
of the United States or of any agency thereof, sued in an official or individual capacity
Doc. 1 at 3.
for any act under color of such office.” Under 28 U.S.C. § 1447(c), a case shall be
remanded “[i]f at any time before final judgment it appears that the district court lacks
subject matter jurisdiction.” The burden of establishing federal jurisdiction falls to the
party invoking the removal statute.4 While Section 1441(a) “is strictly construed against
removal jurisdiction,”5 removal rights under Section 1442(a) are construed more
Plaintiffs move for an order of remand and/or abstention pursuant to 28 U.S.C.
§ 1447. Plaintiffs argue that removal was improper, because federal question
jurisdiction is absent. Plaintiffs specifically argue that 1) they are not seeking any
remedy based on federal law, 2) this case could not be brought in federal court initially
because there is no private right of action created by 25 U.S.C. § 1616l, and
3) regulation over the practice of dentistry “falls squarely and traditionally within the
purview of the States.”7 Defendant argues that federal question removal is proper,
because “[p]laintiffs’ claims are founded upon federal law and necessarily depend on
resolution of substantial questions of federal law.”8
In determining the presence or absence of federal jurisdiction, the court applies
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.”9 “The federal issue ‘must be disclosed upon the face of the complaint,
California ex rel. Lockyer v. Dynegy, Inc., 375 F.3d 831, 838 (9th Cir. 2004).
Durham v. Lockheed Martin Corporation, 445 F.3d 1247, 1252-1253 (9th Cir. 2006).
Doc. 14 at 11.
Doc. 42 at 15 (quoting Notice of Removal, doc. 1 at ¶ 1).
Lockyer, 375 F.3d at 838 (quoting Caterpillar Inc. v, Williams, 482 U.S. 386 (1987)).
unaided by the answer or by the petition for removal.’”10 “A defense is not part of a
plaintiff’s properly pleaded statement of his or her claim.”11
Plaintiffs’ complaint alleges that “ANTHC, along with others, has developed and
implemented the Dental Health Aide Program (“DHAP”), which is purportedly part of the
Community Health Aide Program (“CHAP”), pursuant to 25 U.S.C. Sec. 1616l.”12 The
complaint further alleges that ANTHC permits and directs DHATs to engage in the
practice of dentistry in violation of state law, and administers the Community Health
Aide Program Certification Board, which promulgated training and certification
standards for DHATs.13
Count I of plaintiffs’ complaint requests a declaration “that by engaging in the
unlicensed practice of dentistry, the DHATs and ANTHC are violating Alaska’s Dental
Practice Act pursuant to AS 08.36.100,”14 which provides that “a person may not
practice, or attempt to practice, dentistry without a license and a current certificate of
registration.”15 Count II requests 1) that DHAT’s “be enjoined from engaging in the
unlicensed practice of dentistry until and unless they meet the qualifications established
under state law and are granted a license by the State Dental Board,” and 2) that the
ANTHC “be enjoined from engaging in the unlicensed practice of dentistry, to the extent
that it is exercising control over professional dental matters or the operation of dental
equipment in a facility where the acts and things described in the Dental Practice Act
are performed or done.”16
Id. (quoting Gully v. First Nat’l Bank in Meridian, 299 U.S. 109, 112 (1936)).
Id. (quoting Rivet v. Regions Bank, 522 U.S. 470, 475 (1998)).
Complaint at 3, exh. A, doc. 1.
Complaint at 4, exh. A, doc. 1.
Complaint at 14, exh. A, doc. 1.
Complaint at 14-15, exh. A, doc. 1.
On its face, plaintiffs’ complaint does not state a claim arising under federal law.
Plaintiffs seek relief under Alaska statutes which prohibit the practice of dentistry without
a license and a certificate of registration, define what constitutes the practice of
dentistry, and establish the minimum education and training requirements to practice
dentistry in Alaska.17 Although plaintiffs refer to 25 U.S.C. § 1616l in their complaint,
plaintiffs do not state a claim for relief under a federal statute, nor does it appear that
25 U.S.C. § 1616l provides for a private right of action.
The court’s inquiry does not end there.18 Defendant argues that “[t]his action,
although ‘artfully pled,’ seeks to enjoin a federal agency and federal officers - the Indian
Health Service’s Community Health Aide Program Certification Board (‘CHAP
Certification Board’), its members and its staff from certifying dental health aide
therapists in accordance with its mandate under the Indian Health Care Improvement
Act, 25 U.S.C. § 1616l.”19 Plaintiffs respond that their claims do not challenge the
CHAP Certification Board’s authority to certify dental health care providers under federal
law, rather Counts I and II “seek enforcement and declaration of state statutes.”20
“Under the artful pleading doctrine, a plaintiff may not avoid federal jurisdiction by
‘omitting from the complaint federal law essential to his claim, or by casting in state law
terms a claim that can be made only under federal law.’”21 Courts have applied the
artful pleading doctrine in complete preemption cases and substantial question cases,
which includes cases where the claim is necessarily federal in character or where the
right to relief depends on the resolution of a substantial, disputed federal question.22
AS 08.36.100; AS 08.36.110; AS 08.36.360.
Lippitt v. Raymond James Financial Services, Inc., 340 F.3d 1033, 1041 (9th Cir.
Doc. 42 at 2.
Doc. 67 at 5.
Rains v. Criterion Systems, Inc., 80 F.3d 339, 344 (9th Cir. 1996).
Lippitt, 340 F.3d at 1041-1042.
The artful pleading doctrine does not apply here. Complete preemption only
applies when “federal law completely preempts state law and provides a federal
remedy.”23 Here, defendant does not assert,24 and the court does not find, “complete
preemption.” Nor do plaintiffs’ claims implicate a substantial federal question. Plaintiffs’
claims seek declaratory and injunctive relief solely under Alaska statutes. At most, the
complaint’s reference to the Community Health Aide Program for Alaska established in
25 U.S.C. § 1616l may provide defendants with a conflict preemption defense to
plaintiffs’ state law claims. “Unlike complete preemption, preemption that stems from a
conflict between federal and state law is a defense to a state law cause of action and,
therefore, does not confer federal jurisdiction over the case.”25
ANTHC next argues that removal is appropriate under 28 U.S.C. § 1442(a)(1),
which allows removal by the “United States or any agency thereof or any officer (or any
person acting under that officer) of the United States or of any agency thereof, sued in
an official or individual capacity for any act under color of such office. . . .” To secure
removal, a person acting under a federal officer must establish that the suit is for “a[n]
act under color of such office” and must raise a colorable federal defense.26 “The
requirement of ‘any act under color of such office’ has been construed as requiring a
causal connection between the charged conduct and the official authority.”27
Here, ANTHC alleges that it “performs the conduct challenged in this action on
behalf and under the direction of the Indian Health Service CHAP Certification Board”
ARCO Environmental Remediation v. Dept. of Health and Environmental Quality of the
State of Montana, 213 F.3d 1108,1114 (9th Cir. 2000) (quoting Ethridge v. Harbor House
Restaurant, 861 F.2d 1389, 1403 (9th Cir. 1988)).
Doc. 42 at 15 n.7.
ARCO, 213 F.3d at 1114.
Durham v. Lockheed Martin Corporation, 445 F.3d 1247, 1251 (9th Cir. 2006);
Jefferson County v. Acker, 527 U.S. 423, 431 (1988); Mesa v. California, 489 U.S. 121, 139
Ely Valley Mines, Inc. v. Hartford Acc. and Indem. Co., 644 F.2d 1310, 1313 (9th Cir.
pursuant to ANTHC’s Funding Agreement with the United States Department of Health
and Human Services, and that the CHAP Certification Board’s control and direction over
the certification process satisfies the “acting under” requirement for § 1442(a) removal.28
The conduct challenged in plaintiffs’ complaint is not the CHAP Certification Board’s
“control and direction over the DHAT certification process.” Rather, plaintiffs’ complaint
alleges that defendant ANTHC is engaging in the unauthorized practice of dentistry “by
exercising control over professional dental matters or the operation of dental equipment
in a dental facility where the acts and things described in the Dental Practice Act are
performed or done.”29 ANTHC fails to show that the specific conduct challenged in
plaintiffs’ complaint, namely the practice of dentistry without a license, “is taken [by
ANTHC] pursuant to a federal officer’s direction.”30 It follows that ANTHC was not
entitled to remove plaintiffs’ action to federal court under 28 U.S.C. § 1442(a)(1).
Given the evident disparity between the alleged actions of ANTHC which
plaintiffs challenge, and the actions in which ANTHC actually is engaged, plaintiffs may
not have pled a claim against ANTHC for which relief can be granted. However, this
court lacks jurisdiction over the claim actually pled and so must defer determination of
the viability of plaintiffs’ claim to the state court.31
Remand being appropriate, it is unnecessary to address the issue of abstention.
For the reasons set out above, the motion for remand at docket 14 is GRANTED,
and this matter is REMANDED to the Superior Court for the State of Alaska , Third
Doc. 42 at 28-29.
Complaint at 7 (internal quotation and citation omitted), exh. A, doc. 1.
Durham, 445 F.3d at 1251.
Plaintiffs’ complaint also alleges that DHATs are engaging in acts which constitute the
practice of dentistry without a license. Had they been served and appeared in this matter,
defendant DHATs may have had a better argument against remand on the basis of federal
officer jurisdiction than has ANTHC.
Judicial District at Anchorage. It is further ordered that plaintiffs’ motion at docket 20 to
stay all proceedings pending a ruling on the motion to remand is DENIED AS MOOT.
All other pending motions are remanded for the State court’s determination.
DATED at Anchorage, Alaska, this 28th of June 2006.
JOHN W. SEDWICK
UNITED STATES DISTRICT COURT JUDGE
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