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No. 95-244

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CHARLES QUACKENBUSH, CALIFORNIA INSURANCE COMMISSIONER, et al., PETITIONERS v. ALLSTATE INSURANCE COMPANY

on writ of certiorari to the united states court of appeals for the ninth circuit

[June 3, 1996]

Justice Scalia , concurring.

Justice Kennedy, while joining the opinion of the Court, says that he would "not rule out . . . the possibility that a federal court might dismiss a suit for damages in a case where a serious affront to the interests of federalism could be averted in no other way," post, at 1-2. I would not have joined today's opinion if I believed it left such discretionary dismissal available. Such action is foreclosed, I think, by the Court's holding, clearly summarized in the concluding sentences of the opinion: "Under our precedents, federal courts have the power to dismiss or remand cases based on abstention principles only where the relief being sought is equitable or otherwise discretionary. Because this was a damages action, we conclude that the District Court's remand order was an unwarranted application of the Burford doctrine." Ante, at 24-25.

Justice Kennedy's projected horrible of a "serious affront to the interests of federalism" cannot possibly materialize under the Court's holding. There is no "serious affront to the interests of federalism" when Congress lawfully decides to pre-empt state action--which is what our cases hold (and today's opinion affirms) Congress does whenever it instructs federal courts to assert jurisdiction over matters as to which relief is not discretionary.

If the Court today felt empowered to decide for itself when congressionally decreed jurisdiction constitutes a "serious affront" and when it does not, the opinion would have read much differently. Most pertinently, it would not have found it unnecessary "to inquire fully as to whether this case presents the sort of `exceptional circumstance' in which Burford abstention or other grounds for yielding federal jurisdiction might be appropriate." Ante, at 24. There were certainly grounds for such an inquiry if we thought it relevant. The "[then] unsettled but since resolved question of California law" to which Justice Kennedy refers, post, at 1, was only part of the basis for the District Court's decision to remand to state court; the court also pointed more generally to what it thought was the State's "overriding interest in regulating insurance insolvencies and liquidations in a uniform and orderly manner," App. to Pet. for Cert. 34a. As the Court's opinion says, it is not necessary to inquire fully into that matter because this was a damages action.