dissenting.
I agree with the majority that the interpretation of a settlement agreement in a FELA suit is a matter of federal law, Dice v. Akron, Canton, & Youngstown Railroad, 342 U.S. 359, 361-62, 72 S.Ct. 312, 314-15, 96 L.Ed. 398 (1952), and that federal courts have jurisdiction over cases such as the one at hand, Imm v. Union Railroad, 289 F.2d 858 (3d Cir.1961). I dissent because I cannot agree with the majority’s determination that plaintiffs must bring their action in the state court. Moreover, although the point is not squarely addressed by the majority, I would conclude that the district court erred in dismissing the complaint for failure to state a cause of action.
The district court did not view the case as a dispute over the settlement of a personal injury claim, but rather as one based solely on section 55 of the FELA, 45 U.S.C. § 55. In finding no cause of action under that provision, the court relied on two cases, Bay v. Western Pacific Railroad, 595 F.2d 514 (9th Cir.1979), and Fullerton v. Monongahela Connecting Railroad, 242 F.Supp. 622 (W.D.Pa.1965).
Those cases are distinguishable from the case at hand. Unlike the situation presented here, the plaintiffs in Bay and Fullerton sought relief beyond that available under section 51. Their claims were not for damages attributable to physical injuries caused by railroad negligence.
In Fullerton, the plaintiff alleged a conspiracy to prevent him from recovering in another FELA suit. Damages were sought for, inter alia, defamation of character, emotional distress, and invasion of privacy. These claims were triggered by the conduct of a railroad agent investigating the plaintiff. The Fullerton court correctly concluded that because the claims were not based on negligence, they did not come within the scope of section 51. In addition, the court stated, without discussion, that section 55 did not create a “civil cause of action.” 242 F.Supp. at 626.
Similarly, the plaintiff in Bay did not seek recovery for a work-related injury. He asserted that his discharge from employment, allegedly for refusing to settle a FELA suit, violated section 55. The court cited Fullerton, noting that it was the “only reported decision dealing specifically with the question.” 595 F.2d at 516 n. 4. Finding no evidence of congressional intent to allow a separate recovery under section 55, the Bay court concluded that the section’s legislative purpose was to protect against a railroad defense that the employee had contracted away the right to sue. Section 55, the court stated, “was not intended to afford a cause of action, separate from that for recovery of damages for injury under FELA.” 595 F.2d at 516. See also Landfried v. Terminal Railroad Assoc. of St. Louis, 721 F.2d 254, 256 (8th Cir.1983) (no cause of action under section 55 for retaliatory discharge), cert, denied, — U.S. -, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984).
In contrast to Bay and Fullerton, plaintiffs in this case do not seek damages separate and apart from, or in addition to, those available for the personal injuries covered by section 51. The plaintiffs’ position is that they did not receive the full amount of damages set by the section 51 settlement because of the railroad’s violation of section 55. The parties’ position would be the same if plaintiffs had obtained a verdict in a section 51 ■ action against the railroad which then applied the same setoff it in-*934vokes here. Cf Clark v. Burlington Northern, Inc., 726 F.2d 448 (8th Cir.1984); Russo v. Matson Navigation Co., 486 F.2d 1018 (9th Cir.1973); Thomas v. Penn Central Co., 379 F.Supp. 24 (W.D.Pa.1974).
That the claims at bar are within the scope of the Act is further evinced by the repeated instances in which similar challenges to settlements have been brought in section 51 actions. Instead of directly challenging the settlement, plaintiffs could have brought a personal injury action under section 51. The railroad’s defense of settlement could then be countered, as in Duncan v. Thompson, 315 U.S. 1, 62 S.Ct. 422, 86 L.Ed. 575 (1942), with the allegation that the settlement violated section 55. See also Hogue v. Southern Railway Co., 390 U.S. 516, 88 S.Ct. 1150, 20 L.Ed.2d 73 (1968). In a similar vein, the posture of the litigation here is akin to those cases where enforcement of a FELA settlement is sought. Good v. Pennsylvania Railroad, 384 F.2d 989 (3d Cir.1967). See also Napier v. Chesapeake & Ohio Railway Co., 582 F.2d 1344 (4th Cir.1978).
In Bay, the court relied on a congressional report to the “nearly identical predecessor of § 55, § 5 [of the Employer’s Liability Act of 1908].” 595 F.2d at 515-16. That legislative history does not suggest that plaintiffs here fail to state a cause of action. The purpose of section 5 was to “make effective” the liability provision now represented by section 51. H.R.Rep. No. 1386, 60th Cong., 1st Sess. 6 (1908), quoted in Cavanaugh v. Western Maryland Railway Co., 729 F.2d 289, 292 (4th Cir.1984). Section 5 was viewed as “render[ing] void any contract or rule whereby a common carrier seeks to exempt itself from liability created by this act.” H.R.Rep. at 6.
Here, plaintiffs want to complete their recovery under section 51 by challenging a setoff to the settlement of that claim as contravening section 55. Plaintiffs, in effect, seek to void the railroad’s alleged improper attempt to partially exempt itself from its agreed to liability under section 51. A suit on that basis is within the expectations of the legislation.
I therefore differ with the district court’s reasoning, and conclude that plaintiffs have properly stated a cause of action.
I come then to the majority’s thesis that having elected to proceed in the first instance in the state court, plaintiffs must return there to obtain relief. Although somewhat appealing on first reading, further reflection reveals serious flaws with this rationale.
I assume that if plaintiffs had settled their claims without ever filing suit, the majority would concede that the district court should adjudicate the dispute at hand. Nothing in the majority opinion gives any indication to the contrary, and it does admit that federal question jurisdiction may be invoked. That being so, the filing of the state court suit is the critical factor leading the majority to opt for what may be considered a policy akin to abstention.
Because the validity of the settlement is a matter of federal statutory law and restraint of state proceedings is not sought, the three traditional bases for abstention set forth in Colorado River Water Conservation District v. United States, 424 U.S. 800, 814-16, 96 S.Ct. 1236, 1244-45, 47 L.Ed.2d 483 (1976), are not applicable here.1 The Court has also articulated a narrow fourth category based on “considerations of ‘wise judicial administration, giving regard to conservation of judicial resources and comprehensive disposition of litigation.’ ” Id. at 817, 96 S.Ct. at 1246, (quoting Kerotest Manufacturing Co. v. C-O-Two Fire Equipment Co., 342 U.S. 180, *935183, 72 S.Ct. 219, 221, 96 L.Ed. 200 (1952)). In explaining this standard, the Court observed that the pendency of a state proceeding is generally “ ‘no bar to proceedings concerning the same matter in the Federal Court’ ” and emphasized the “unflagging obligation” of a federal court to exercise its jurisdiction. Id. 424 U.S. at 817, 96 S.Ct. at 1246 (quoting McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 505, 54 L.Ed. 762 (1910)). Nevertheless, “exceptional” circumstances permit the “dismissal of a federal suit due to the presence of a concurrent state proceeding.” Id. 424 U.S. at 818.
The Colorado River principles were reaffirmed in Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), where the Court stated that “the task is to ascertain whether there exist ‘exceptional’ circumstances, [and] the ‘clearest of justifications’ ... to justify the surrender of [federal] jurisdiction.” Id. at 25, 103 S.Ct. at 942. See also Arizona v. San Carlos Apache Tribe, 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837 (1983). A number of factors are to be considered in this analysis, including convenience of the forum, avoidance of piecemeal litigation, and sequence in which jurisdiction was obtained. 460 U.S. at 15-29, 103 S.Ct. at 937-943. “[T]he presence of federal-law issues must always be a major consideration weighing against surrender.” Id. at 26, 103 S.Ct. at 942.
In the case at hand, no parallel action is presently pending in the state court. The personal injury suit brought there was dismissed, presumably on agreement of the parties. Thus, the relief plaintiffs request from the federal court will in no way affect the state court’s disposition of its case which has long been closed. In short, the risks associated with piecemeal or duplicative litigation are nonexistent in this case. Moreover, deference to a state proceeding is not favored here because federal law provides the rule of decision on the merits. See id. at 25 & n. 32, 103 S.Ct. at 942 & n. 32.
Considerations of comity were not implicated in Colorado River, 424 U.S. at 817, 96 S.Ct. at 1246 and are not usually applicable when the state proceedings are completed, see Garden State Bar Association v. Middlesex County Ethics Committee, 687 F.2d 801, 803 (3d Cir.1982). A different situation might be presented where there is judicial participation, whether formal or informal, in the settlement of a state court suit. See Fleeger v. Clarkson Co., 86 F.R.D. 388, 393 (N.D.Tex.1980) (comity counsels dismissal of suit challenging court-approved settlement in course of Canadian receivership process); cf. In re Grand Jury Proceedings (Wright II), 654 F.2d 268, 277-79 (3d Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 671, 70 L.Ed.2d 639 (1981); Ungar v. Mandell, 471 F.2d 1163 (2d Cir.1972). The record in this case, however, does not demonstrate any judicial intervention in the state court settlements. By contrast, in the case cited by the majority, Lee v. Hunt, 483 F.Supp. 826 (W.D.La. 1979), aff'd, 631 F.2d 1171 (5th Cir.1980), claims were settled after several days of trial, with the active participation and supervision of the trial judge. No such circumstances are alleged here. For all the record reveals, the claims were settled without judicial intervention.
In sum, the mere fact that plaintiffs filed and settled a suit in the state court is not such an “exceptional” circumstance that a federal court should decline to hear this dispute. On the record before us, the state court had little more involvement than if the parties had settled the claim before filing suit.
I am not persuaded that a federal court can decline to adjudicate in this case, and therefore I dissent from the affirmance of the district court’s dismissal.
. The Court summarized the three traditional categories of abstention as (a) “'cases presenting a federal constitutional issue which might be mooted ... by a state court determination of pertinent state law;'" (b) cases presenting "difficult questions of state law" that bear on "state efforts to establish a coherent policy with respect to a matter of substantial public concern;” and (c) cases where "federal jurisdiction has been invoked for the purpose of restraining state criminal” and other types of state proceedings. 424 U.S. at 814-16, 96 S.Ct. at 1244-45 (citations omitted); see also Kruse v. Snowshoe Co., 715 F.2d 120, 122 (4th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1413, 79 L.Ed.2d 739 (1984).