1 Though Gerard Quirk's wife, Rose Quirk, is also a defendant/appellant, for simplicity, this

decision will refer only to Gerard Quirk.

2 33 U.S.C.A. §§ 901-950 (West 1986). United States Court of Appeals,

Fifth Circuit.

No. 95-30954

Summary Calendar.

Dr. J. Frazer GAAR, Plaintiff-Appellee,

v.

Gerard QUIRK and Rose Quirk, Defendant-Appellants.

June 27, 1996.

Appeal from the United States District Court for the Western District of Louisiana.

Before WISDOM, DAVIS and STEWART, Circuit Judges.

WISDOM, Circuit Judge:

BACKGROUND

In 1993, the defendant/appellant, Gerard Quirk, 1 allegedly suffered an injury while working

as a pipe-fitter for Seawolf Services. Quirk filed for compensation for these injuries under t he

Longshore and Harbor Workers' Compensation Act (LHWCA). 2 A doctor selected by Quirk and one

chosen by his employer's LHWCA insurance carrier each examined Quirk and reached opposite

conclusions; Quirk's doctor determined that Quirk was disabled and in need of surgery to correct his

injury while the insurance carrier's physician concluded that Quirk was not a candidate for surgery,

t hat surgery could worsen his condition, and that his condition would improve. Because of the

conflicting medical opinions, the insurance carrier denied coverage for the surgery.

To resolve their dispute, Quirk and the insurance carrier then agreed to be bound by the

opinion of an independent medical examiner. They choose Dr. J. Frazer Gaar, the plaintiff/appellee.

After performing his examination, Gaar concluded that Quirk was not in need of surgery and was fit

to return to work. Based on Gaar's medical opinion, Quirk was denied LHWCA benefits.3 La.Rev.Stat.Ann. §§ 40:1299.41-:1299.48 (West 1992 & Supp.1995).

4 Low e v. Ingalls Shipbuilding, 723 F.2d 1173, 1176-77 (5th Cir.1984).

5 Id. at 1177.

6 Id. at 1179.

7 28 U.S.C.A. §§ 1331, 1333 (West 1993).

8 Lowe, 723 F.2d at 1179 (emphasis added). Quirk and his wife then filed a claim against Dr. Gaar wit h the Louisiana Patient's

Compensation Fund, 3 alleging that Gaar's opinion constituted medical malpractice. In response, Gaar

filed the instant suit in federal district court, requesting a declaratory judgment that grants him judicial

immunity from Quirk's state action because of Gaar's role in the LHWCA proceeding. The district

court, agreei ng wit h Gaar that he is entitled to immunity for the opinion he rendered for the

quasi-judicial LHWCA proceeding, granted Gaar the requested declaratory judgment. Quirk now

appeals this decision.

JURISDICTION

Though neither party nor the district court questioned jurisdiction, it is our duty to raise this

issue sua sponte. 4 Parties who seek to invoke the jurisdiction of the federal courts have the duty to

establish jurisdiction by affirmat ively alleging the facts conferring jurisd ict io n in their complaints. 5

A petition for a declaratory judgment concerning federal law is not sufficient to create federal

jurisdiction; "hence the relevant cause of action must arise under some other federal law". 6 In the

instant case, Gaar's complaint states that the district court has subject matter jurisdiction under 28

U.S.C. §§ 1331 and 1333, which create fed eral jurisdiction over federal questions and admiralty

issues. 7 Such conclusory statements in the complaint, however, do not establish jurisdiction.

The Declaratory Judgment Act merely "enables a p art y t o achieve federal question

jurisdiction over a suit to declare that a claim arising under federal law which another asserts against

him is not valid". 8 The general rule is t hat a federal defense to a state law claim does not confer9 Id.; see Aaron v. National Union Fire Ins. Co., 876 F.2d 1157, 1161 (5th Cir.1989), cert.

denied, 493 U.S. 1074, 110 S.Ct. 1121, 107 L.Ed.2d 1028 (1990).

10 Lowe, 723 F.2d at 1180 (citing Public Serv. Comm'n v. Wycoff Co., 344 U.S. 237, 248, 73

S.Ct. 236, 242-43, 97 L.Ed. 291 (1952)).

11 See id.; 10A C HARLES A. W RIGHT

, A RTHUR R. M ILLER & M ARY K AY K ANE

, F EDERAL

P RACTICE AND P ROCEDURE C IVIL 2 D § 2767 (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.").

There are two exceptions to this rule, neither of which apply. The record contains

no evidence that Quirk's state claim was the result of artful pleading designed to conceal

the fact that his claim was actually federal in nature. See Aaron, 876 F.2d at 1161. The

second exception allowing jurisdiction over a federal defense requires a state claim to be

recharacterized as a federal cause of action when federal law completely preempts state

law in that area. Id. at 1161-63. Because the LHWCA does not completely preempt state

law, we need not even consider this exception in the instant case. See id. at 1164;

Masters v. Sw iftships Freeport, 867 F.Supp. 555, 558 (S.D.Tex.1994).

Finally, Gaar has not stated a basis for this court to invoke admiralty jurisdiction

under 28 U.S.C.A. § 1333. federal question jurisdiction. 9 Gaar's petition asserts federal jurisdiction solely on the basis that the

LHWCA and general marit ime law provide the defense of immunit y to Quirk's state law claim. When

a declaratory judgment complaint essentially invokes a federal-law defense to a state-based claim, it

is the character of the th reat ened st ate action that determines whether federal courts have

jurisdiction. 10 Under this rule, the character of Quirk's state court action controls our determination.

Because Quirk's malpractice complaint is founded solely in state law, the district court was without

jurisdiction to entertain Gaar's petition, which is merely a defense to Quirk's claim. 11

For the foregoing reasons, we VACATE the decision of the district court and REMAND this

case with instructions to dismiss for lack of jurisdiction.