specially concurring.
Compelled by binding Circuit precedent, I concur in the result reached by this Court today in the instant case. Nevertheless, in view of conflicting pronouncements by members of this Court in previous opinions on the issue of whether the LHWCA is so completely preemptive as to create federal question jurisdiction within the purview of the Avco exception to the “well-pleaded complaint” rule, I respectfully urge this Court to afford en banc consideration to the instant appeal.
In a most scholarly and thorough opinion, the Court today details with precision the evolution of the Avco exception to the “well-pleaded complaint” doctrine; no need exists to repeat that chronology. After doing so, this Court concludes that, contrary to the legislative history and statutory language of the LMRA and ERISA, the legislative history and statutory language of the LHWCA do not evince any congressional intent to make state claims preempted by the LHWCA removable to federal court pursuant to the Avco exception. Specifically, this Court points to the fact that the LHWCA does not include a civil enforcement provision similar to that contained in the LMRA and ERISA. The *1167civil enforcement provisions in the LMRA and ERISA both provide a specific jurisdictional grant to the federal courts to enforce the causes of action created by those acts. Moreover, in concluding that the LHWCA does not create federal removal jurisdiction within the context of the Avco rule, this Court rejects the notion that the exclusivity provision of the LHWCA, Section 905, coupled with the preemptive force of the LHWCA, will suffice to create such removal jurisdiction. Finally, the Court notes that a previous panel of this Court, in Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th Cir.1984), Judge Garwood speaking for the panel (Judges Garza and King), adhered to the well-pleaded complaint rule in that LHWCA case, concluding that the LHWCA was nothing more than a defense to a state claim which could not form the basis of federal removal jurisdiction.
Persuaded that Lowe constitutes binding precedent on this issue, I concur in the result reached by the Court today which follows Lowe; however, due to the differing views previously expressed by my fellow colleagues on this Court as to this issue, en banc treatment of the instant appeal is warranted. As to the particular views on this issue expressed by members of this Court, it is noted that in the original panel opinion in Texas Employers’ Insurance Association v. Jackson, 820 F.2d 1406 (5th Cir.1987), authored by Judge Brown (Judges Brown and Reavely), the panel majority recognized that, under the well-pleaded complaint rule, federal preemption is generally a defensive matter which does not give rise to federal removal jurisdiction; nevertheless, the majority then concluded that the LHWCA was so preemptive as to bring the case within the Avco exception. Dissenting from the majority opinion in that case, however, Judge Jones, citing the previous decision of this Court in Lowe, stated that “[ajbsent a direct expression of legislative intent to create federal jurisdiction for all causes of action related to LHWCA, the well-pleaded complaint rule may not be overcome.” Texas Employers’, 820 F.2d at 1424 n. 1.
Thereafter, this Court determined to consider the Texas Employers’ case en banc. As noted by the Court today, however, the en banc Court avoided resolving “this difficult issue” by pretermitting the jurisdictional issue and vacating the panel opinion on another basis. Specifically, the en banc Court concluded that, even assuming the federal district court in that case possessed jurisdiction, the district court nevertheless did not possess the authority to enter the injunctive and declaratory relief requested by the defendant. See Texas Employers’ Insurance Association v. Jackson, 862 F.2d 491, 496-97 n. 8 (5th Cir.1988) (en banc).
In a dissenting opinion to the Court’s en banc opinion in Texas Employers’, however, Judge Brown, joined by Judge Williams, maintained that federal removal jurisdiction was created in that case primarily by virtue of the comprehensive regulatory scope of the LHWCA. Specifically, the dissent, emphasizing the reasoning of the original panel majority opinion in Texas Employers’, stated
Our determination that the LHWCA is so preemptive as to create federal question jurisdiction is no “expansion” of the Avco rule. The LHWCA, if anything, is broader, and more comprehensive than the LMRA. The LMRA merely places jurisdiction of labor disputes in the federal district courts. The LHWCA, on the other hand, contains not only the exclusive remedy section (§ 905(a)), but also sets out sections and chapters that comprehensively regulate employers and insurance carriers that provide LHWCA coverage, and utterly control the sum total of rights and obligations of insurers, employers and employees. This, by no means, then dilutes the Avco rule; it acknowledges an exception more powerful than the original.
Texas Employers’, 862 F.2d at 512. (citation omitted).
Without directly addressing the above issue regarding the LHWCA and the Avco exception, two separate concurrences to the en banc opinion in Texas Employers’ (Judges Clark and Rubin) lamented the prospect of litigants in state courts seeking to enforce their right to not have a clearly preempted federal claim litigated in a state court. Too often, the concurrences argued, such litigants are virtually trapped in state court and forced to rely on the slim possibility of securing discretionary review of *1168their claims in the Supreme Court which, due to the overburdened status of the current docket of the Supreme Court, is more often than not an exercise in futility. In this regard, it can hardly be doubted that a ruling by this Court that the LHWCA creates federal removal jurisdiction within the meaning of the Avco rule would to a certain extent address the above problem highlighted by the concurrences.
In short, the issue of whether the LHWCA creates federal removal jurisdiction is an issue of extreme importance to this Circuit and its litigants. A resolution of this issue in either direction, obviously, will impact greatly on the. interrelationship between state courts and federal courts in the area of claims within the regulatory sphere of the LHWCA. Accordingly, with all deference to the scholarly and thorough opinion handed down today, and in which I join because of binding Circuit precedent, I respectfully urge that this Court consider the instant appeal en banc.