concurring specially in the opinions of Circuit Judges GARWOOD and ALVIN B. RUBIN:
In this case that has produced three other opinions, I add a fourth, not to say I disagree with any of them but to emphasize the one critical matter that none of us disputes: The state cause of action is preempted by LHWCA. If I could read Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987), to permit declaratory relief, I would join Judge Brown. His reasoning would assure the only just, common-sense end to this law suit. While the majority opinion is full of proper legal sound and fury, it can signify nothing but trouble or injustice.
I wish I didn’t feel bound to agree that precedent compels this court to send the case to a court that, if it acts correctly, may only dismiss. If the State court should act improperly to entertain this litigation and grant the relief sought by plaintiff, the only hope (and that hope is a forlorn one as Judge Rubin points out) for correction the Association will have will be the chance it can secure discretionary review in an overburdened Supreme Court. I am at a loss to comprehend how this procedure can advance comity. Exalting the form of the anti-injunction act over the substance of preemption strips both comity and justice of their meaning.