dissenting:
In their zeal to hold that the Longshoremen and Harbor Workers Compensation Act (LHWCA) is the exclusive remedy for Jackson, the majority have seriously erred in several facets of their analysis. Most critically, they conclude that we have jurisdiction over this action despite the obvious applicability of the well-pleaded complaint rule. The only basis of our jurisdiction is TEIA’s federal defense, alleging preemption of state remedies by the LHWCA, to Jackson’s claim for state law relief. A prior Fifth Circuit panel has disclaimed jurisdiction in a closely analogous case involving LHWCA, but the majority do not acknowledge its controlling effect.
The majority’s rush to protect the supremacy of the federal compensation scheme has also led to an ungainly spectacle: a federal court’s umpiring an ongoing lawsuit in state court. While the Supreme Court has not extended Younger abstention principles to all pending state court civil litigation, the majority have misread the analytical framework of the Court’s most recent pronouncement on that issue.
I.
It is a rule almost too well settled to require citation that no federal jurisdiction exists in a declaratory judgment action if a federal question would arise only as a defense to a state cause of action. As stated by the Supreme Court in Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 248, 73 S.Ct. 236, 242, 97 L.Ed. 291 (1952):
Where the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine *1423whether there is federal-question jurisdiction in the District Court.
“The best-settled application of the well-pleaded complaint rule to actions for a declaratory judgment is that federal question jurisdiction exists of a declaratory action if the plaintiff could have sued in federal court for coercive relief.” 13B C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3566, at 99 (1984). This principle was recently reaffirmed in Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983). There, the Court held that federal jurisdiction may not be premised “on the basis of a federal defense, including the defense of pre-emption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties admit that the defense is the only question truly at issue in the case.” 463 U.S. at 14, 103 S.Ct. at 2848. See also Caterpillar, Inc. v. Williams, — U.S. -, 107 S.Ct. 2425, 2429, 96 L.Ed.2d 318 (1987) (holding that it is “settled law” that a federal defense to a state law cause of action, including the defense of preemption, is insufficient to establish federal question jurisdiction under the well-pleaded complaint rule).
The majority acknowledge this rule, as well as its applicability here. Jackson’s state law complaint contains no operative ingredient of federal law. The LHWCA becomes pertinent only as the basis for TEIA’s preemption defense. The majority neglect, however, to address this court’s controlling prior decision that the LHWCA does not overcome the well-pleaded complaint rule in a declaratory judgment context.
In Lowe v. Ingalls Shipbuilding, 723 F.2d 1173 (5th Cir.1984), a declaratory judgment action was instituted by several individuals against Litton, the parent of their shipbuilding employer Ingalls, and Owens-Corning Corporation. The complaint alleged that each of the plaintiffs had previously filed a suit against Owens-Corning for personal injury resulting from exposure to asbestos, which Owens-Corning agreed to settle conditioned on approval by Litton. Litton declined to give its approval and asserted, as plaintiffs’ employer, an independent right of indemnification against Owens-Corning in addition to its LHWCA subrogation rights. Thus, plaintiffs sought a declaration that Litton had no right of indemnification against Owens-Corning and that the right of subrogation under the LHWCA was Litton’s exclusive remedy.
Applying the well-pleaded complaint rule, this court concluded that jurisdiction was lacking because “plaintiffs do not assert a cause of action or claim under the LHWCA against Litton, but rather seek declaratory judgment concerning the effect of the LHWCA on claims Litton might otherwise have against Owens-Corning.” 723 F.2d at 1179. The court reasoned that it was immaterial “that plaintiffs and Owens-Corning contend that the LHWCA ... bars such an action, as this is the sort of defensive issue which cannot form the basis of section 1331 jurisdiction.” Id. at 1183 (emphasis added). Lowe inescapably requires us to deny jurisdiction over TEIA’s declaratory judgment request.
Not to be deterred, the majority attempt to fit TEIA’s claim into the exception to the well-pleaded complaint rule recognized in Avco v. Aero Lodge No. 735, 390 U.S. 557, 88 S.Ct. 1235, 20 L.Ed.2d 126 (1968) which held that the breadth of section 301 of the LMRA displaced state causes of action relating to management/labor relations. Declaring the LHWCA as comprehensive in scope as the LMRA, the majority would effectively transform what would normally be state law claims into claims uniquely federal in character. This argument overlooks that Avco represents a virtually unique exception to the well-pleaded complaint rule. The Supreme Court recently reaffirmed that unless Congress unmistakably manifests an intent to make a cause of action removable to federal court, a defense of federal preemption is insufficient to create federal subject matter jurisdiction. Metropolitan Life Insurance Co. v. Taylor, — U.S. -, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987).1 Avco itself is not an *1424all-encompassing labor-law exception to the well-pleaded complaint rule. The Supreme Court, reiterating its Metropolitan Life pronouncement, stated that “the presence of a federal question, even a § 301 question, in a defensive argument does not overcome the paramount policies embodied in the well-pleaded complaint rule — that the plaintiff is master of the complaint, that a federal question must appear on the face of the complaint [i.e. not as a defense], and that the plaintiff may ... choose to have the cause heard in state court.” Caterpillar, Inc. v. Williams, 107 S.Ct. at 2433. Thus, the Court concluded, a state court may interpret § 301 and a federal collective bargaining agreement whose terms are raised in defense to plaintiffs’ state law action for an alleged employment contract breach. Likewise, we are bound by the formidable and “settled” well-pleaded complaint doctrine to reject TEIA’s search for shelter in a federal forum. TEIA may obtain resolution of its federal law issues in state court, with review by the Supreme Court if necessary.
II.
Having discussed the dispositive question, I must nevertheless take issue with two additional portions of the majority opinion. First, the discussion of abstention by the majority appears to be a “straw-man” erected to defer attention from the more significant question whether granting declaratory relief would in this case violate, in letter or in spirit, the Anti-Injunction Act, 28 U.S.C. § 2283. Second, to the extent Younger 2 abstention principles are applicable to non-§ 1983 cases, I disagree with the majority’s cavalier treatment of these principles in the civil context.
A.
Although the majority conclude that 28 U.S.C. § 2283 prohibits issuance of injunctive relief, they determine that declaratory relief is not prohibited because the effects of federal intervention are supposedly less intrusive in the declaratory judgment context. Relying on Steffel v. Thompson, 415 U.S. 452, 94 S.Ct. 1209, 39 L.Ed.2d 505 *1425(1974), the majority effectively finesse the limitations of the Anti-Injunction Act and approve declaratory relief whose effect, as res judicata between these parties, will probably terminate the pending state litigation as effectively as would an injunction.
Steffel, to borrow a phrase, is a whole different kettle of fish from this case. The Supreme Court’s dicta there suggest that “different considerations” affect the decision whether to grant declaratory relief vis-a-vis injunctive relief in that a declaratory judgment is less intrusive to a state’s interest in preserving the integrity of its judiciary. What the majority overlook, however, is the critical distinction in Steffel: principles of comity and federalism were not implicated in that case because there was no pending state proceeding.
The Supreme Court has, however, underscored the proposition that principles of comity and federalism apply with equal weight to federal declaratory judgment actions instituted during the pendency of state criminal proceedings. In Samuels v. Mackell, 401 U.S. 66, 72, 91 S.Ct. 764, 767, 27 L.Ed.2d 688 (1971), the Court reasoned that:
In cases where the criminal proceeding was begun prior to the federal civil suit, the propriety of declaratory and injunctive relief should be judged by essentially the same standards. In both situations deeply rooted and long-settled principles of equity have narrowly restricted the scope for federal intervention, and ordinarily a declaratory judgment will result in precisely the same interference with and disruption of state proceedings that the long-standing policy limiting injunctions was designed to avoid.
The Court expressed two fundamental concerns over issuing declaratory relief during the pendency of state proceedings. First, the Court questioned whether granting declaratory relief would effectively bootstrap the proscriptions of the Anti-Injunction Act if it later served as the basis for an injunction against those proceedings to “protect or effectuate” the declaratory judgment. 28 U.S.C. § 2283. Second, the Court noted that “even if the declaratory judgment is not used as a basis for actually issuing an injunction, the declaratory relief alone has virtually the same practical impact as a formal injunction would.” 401 U.S. at 72, 91 S.Ct. at 768. While Samuels was decided in the § 1983 context, its lessons are instructive. Younger, Samuels, and their abstention progeny developed as an equitable means by which federal courts could abstain from hearing cases which fall within an exception to the Anti-Injunction Act recognized in Mitchum v. Foster, 407 U.S. 225, 92 S.Ct. 2151, 32 L.Ed.2d 705 (1972) for § 1983 cases. By analogy, if, as here, no exception to the Anti-Injunction statute exists, it would seem inappropriate for the federal court to intrude in ongoing state proceedings solely to issue a Delphic pronouncement to the parties and state court in the form of a declaratory judgment on applicable federal law. Cf. Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976).
Professor Wright agrees that generally, “if a declaratory judgment would have essentially the same effect as an injunction, it should be refused if the injunction would be barred by § 2283.” 17 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 4222, at 316 (1978). See also Chandler v. O’Bryan, 445 F.2d 1045, 1058 (10th Cir.1971); McLucas v. Palmer, 427 F.2d 239, 242 (2d Cir.1970); Glasgow, Inc. v. Noetzel, 556 F.Supp. 595, 598 (S.D.W.V.1983). Because we all agree that 28 U.S.C. § 2283 prohibits an injunction in this case, the same concerns therefore should militate against the propriety of issuing a declaratory judgment. By ignoring this issue, the majority have completely undermined the dominant principles of comity and federalism reflected in the Anti-Injunction Act.
B.
I also disagree with the majority’s declining “to circumscribe the parameter of this purely civil matter precisely along the fence erected against federal intervention in state criminal cases.” Ante at 1420. In light of Pennzoil Co. v. Texaco Inc., — U.S. -, 107 S.Ct. 1519, 95 L.Ed.2d 1 *1426(1987), the majority’s conclusion, while apparently facially correct, is derived from inappropriate analysis. The Supreme Court recently held in Pennzoil that Younger v. Harris bars an injunction against state proceedings “not only when the pending state proceedings are criminal, but also when certain civil proceedings are pending, if the State’s interests in the proceeding are so important that exercise of the federal judicial power would disregard the comity between the States and the National Government.” — U.S. at-, 107 S.Ct. at 1526 (citation omitted). The Supreme Court rebuffed Texaco’s quest for an injunction against the application of Texas post-judgment bond requirements on the grounds that (1) the interference with state collection procedures questioned “the very process by which those judgments were obtained” and (2) Texaco had an adequate, albeit unexplored, remedy should it challenge the statute in the state courts. The Court concluded that “proper respect for the ability of state courts to resolve federal questions presented in state court litigation mandates that the federal court stay its hand.” — U.S. at-, 107 S.Ct. at 1527 (footnote omitted).
The breadth of the Court’s holding, however, must be gauged by two footnotes. In one, the majority observed that “[t]he various types of abstention are not rigid pigeonholes into which federal courts must try to fit cases. Rather, they reflect a complex of considerations designed to soften the tensions inherent in a system that contemplates parallel judicial processes.” — U.S. at-, n. 9,107 S.Ct. at 1526 n. 9. Shortly thereafter, they caution that “[o]ur opinion does not hold that Younger abstention is always appropriate whenever a civil proceeding is pending in a state court. Rather, as in Juidice, we rely on the State’s interest in protecting ‘the authority of the judicial system, so that its orders and judgments are not rendered nugatory.’ ” — U.S. at — n. 12, 107 S.Ct. at 1527 n. 12 (quoting Juidice v. Vail, 430 U.S. 327, 336 n. 12, 97 S.Ct. 1211, 1217 n. 12, 51 L.Ed.2d 376). Two pertinent questions follow from the Court’s comments: whether a declaratory judgment could ever lead to the interference sought to be avoided in Pennzoil; and whether this declaratory judgment action should be so proscribed. I would disagree with the majority and answer the first question affirmatively, based on Samuels and the above-cited portions of the Pennzoil opinion. Because the second issue is not briefed or argued, I would defer its resolution. The majority too hastily dismiss the rationale for abstention in the post-Pennzoil era.
For the foregoing reasons, I respectfully dissent.
Before CLARK, Chief Judge, GEE, RUBIN, REAVLEY, POLITZ, JOHNSON, WILLIAMS, GARWOOD, JOLLY, HIGGINBOTHAM, DAVIS, HILL, and JONES, Circuit Judges.* BY THE COURT:A member of the Court in active service having requested a poll on the suggestion for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc,
IT IS ORDERED that this cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.
. Taylor admittedly extended the Avco exception to hold that state common law claims which are preempted by ERISA were also displaced by ERISA’s civil enforcement provision, *1424§ 502(a)(1)(B), thus creating federal question jurisdiction on removal under 28 U.S.C. § 1441(b) of what would otherwise be uniquely state law causes of action. While, on its face, ERISA’s civil enforcement provision appears exceptionally broad, the Court was reluctant to extend Avco to the civil enforcement framework of ERISA:
Even with a provision such as § 502(a)(1)(B) that lies at the heart of a statute with the unique pre-emptive force of ERISA ... we would be reluctant to find that extraordinary preemptive power, such as has been found with respect to § 301 of the LMRA, that converts an ordinary state common law complaint into one stating a federal claim for purposes of the well pleaded complaint rule.
107 S.Ct. at 1547.
The Court's decision was founded on the virtual identity between the jurisdictional schemes of ERISA, § 502(f), 29 U.S.C. § 1132(f), and the LMRA, § 301, 29 U.S.C. § 185(a), and congressional history explicitly linking those two provisions:
The presumption that similar language in two labor statutes has a similar meaning is fully confirmed by the legislative history of ERISA’s civil enforcement provisions. The Conference Report on ERISA describing the civil enforcement provisions of § 502(a) says:
"[Wjith respect to suits to enforce benefit rights under the plan or to recover benefits under the plan which do not involve application of the Title I provisions, they may be brought not only in U.S. district courts but also in State courts of competent jurisdiction. All such actions in Federal or State courts are to be regarded as arising under the laws of the United States in similar fashion to those brought under section 301 of the Labor-Management Relations Act of 1947." H.R.Conf.Rep. No. 93-1280, p. 327 (1974) (emphasis added).
No more specific reference to the Avco rule can be expected____
Id. Nevertheless, the Court cautioned, "even an 'obvious' preemption defense does not, in most cases, create removal jurisdiction. In this case, however, Congress has clearly manifested an intent to make causes of action within the scope of the civil enforcement provisions of § 502(a) removable to federal court." Id. at 1548.
The LHWCA contains no civil enforcement provision like the Siamese twin provisions found decisive in Taylor between ERISA and § 301 of the LMRA. The decisive factor therefore is whether the LHWCA is "so powerful as to displace entirely any state cause of action____" Franchise Tax Board, 463 U.S. at 23, 103 S.Ct. at 2853. Congress has not indicated, as it did with ERISA, that the LHWCA reaches this far. Absent 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.
. Younger v. Harris, 401 U.S. 37, 91 S.Ct. 746¢G, L.Ed.2d 669 (1971).