Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 26 (1996)

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Cite as: 517 U. S. 706 (1996)

Scalia, J., concurring

of a disputed question of state law. For example, given the situation the District Court faced in this case, a stay order might have been appropriate: The setoff issue was being decided by the state courts at the time the District Court ruled, see Prudential Reinsurance Co., supra, and in the interest of avoiding inconsistent adjudications on that point, the District Court might have been justified in entering a stay to await the outcome of the state court litigation.

Like the Ninth Circuit, we review only the remand order which was entered, and find it unnecessary to determine whether a more limited abstention-based stay order would have been warranted on the facts of this case. We have no occasion to resolve what additional authority to abstain might be provided under our decision in Fair Assessment, see supra, at 719. Nor do we find it necessary 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. 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 unwar-ranted application of the Burford doctrine. The judgment is affirmed.

It is so ordered.

Justice Scalia, concurring.

I join the opinion of the Court. I write separately only to respond to Justice Kennedy's concurrence.

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 733. I would not have joined today's opinion if I believed it left such discretionary


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