dissenting:
The decision reached by the majority in this case depends upon the proposition that all issues that could be raised in the malpractice action brought by Walter J. Thomas and his co-plaintiffs were precluded by the disposition of the class action. While this is almost true, I do not think it is entirely so.
In their complaint before the District of Columbia Superior Court, the plaintiffs allege that their counsel entered into a consent decree certifying the class pursuant to Rule 23(b)(2), “[cjontrary to the express instructions and wishes of the Plaintiffs.” The plaintiffs further allege that their attorneys breached a fiduciary duty because the plaintiffs “had rejected any compromise or settlement which would result in a certification of the class pursuant to Rule 23(b)(2), rather than 23(b)(3), which would allow the individual Plaintiffs to ‘opt-out’ of the class in order to maintain their individual causes of action.” It would appear that Thomas and his co-plaintiffs are stating, or attempting to state, a cause of action depending upon the propositions that class counsel had an individual duty to the plaintiffs and that the plaintiffs had instructed counsel not to agree to the (b)(2) certification. These propositions raise factual issues that should be resolved by the D.C. Superior Court.
When the district court approved the settlement in the underlying action and certified the class under Rule 23(b)(2), it noted that “Plaintiffs moved for certification under Rule 23(b)(2).” Thomas v. Christopher, 169 F.R.D. 224, 239 (D.D.C.1996). Similarly, on appeal, this Court stated that “[cjlass counsel repeatedly requested certification pursuant to (b)(2), [and] the consent decree stated that the parties agreed to certification pursuant to (b)(2).” Thomas v. Albright, 139 F.3d 227, 235 (D.C.Cir.1998). Indeed, the consent decree barred the district court from “modifying the terms of the agreement.” Id. at 233. Although the plaintiffs argued for the right to opt out of the settlement during the fairness hearings and again on appeal, they did so within the confines of Rule 23(b)(2). Their arguments would have been unnecessary if their counsel had negotiated for a Rule 23(b)(3) certification.
The majority mistakenly asserts that in order to prevail in their Superior Court case, “the plaintiffs would have to establish that they were damaged because the class should have been certified under Rule 23(b)(3).” Slip Op. at 265. Rather, to prevail, the plaintiffs simply would have to establish that the class could have been certified under Rule 23(b)(3).1 That question has never been litigated.
*267Although the plaintiffs were represented separately during the fairness hearings, they contend that they essentially were not represented at the table when counsel negotiated with the State Department. If they had been adequately represented, then their views on opting out surely would have been expressed in the precerti-fication negotiations. If the plaintiffs had instructed counsel not to agree to a 23(b)(2) certification and if counsel had an individual duty to the plaintiffs (two very big “ifs”), then, as the plaintiffs allege, counsel may have violated its fiduciary duty by (1) not telling them about the conflict between the interests of the plaintiffs and the class as a whole and (2) not advocating the plaintiffs’ position in the negotiations. These issues were not addressed by the district court in its initial decision or by this Court on appeal. In fact, these issues could not have been litigated because the consent decree negotiated by counsel locked the district court in to certifying the class pursuant to Rule 23(b)(2). See Thomas, 139 F.3d at 233.
The majority assumes, without deciding, that the District of Columbia is a “State” within the meaning of the Anti-Injunction Act, 28 U.S.C. § 2283, suggesting that the scope of the Act’s relitigation exception “is the central issue in this case,” Slip Op. at 261. In this case, the Court need not assume, much less decide, that the Act applies to D.C.2 The scope of the relit-igation exception is not the central issue in this case. With or without the Anti-Injunction Act, the United States District Court cannot enjoin the ongoing litigation in the Superior Court without some legal basis for doing so. Here, as I understand the appellees’ complaint, the basis is that the issues involved in the Superior Court case have been heretofore litigated in the federal litigation. It may be that the ap-pellees should ultimately prevail, but in my view it should be achieved after the litigation of what appear to me to be open issues in the Superior Court.
A court cannot issue a permanent injunction without first finding that the applicant has demonstrated actual success on the merits. See Amoco Production Co. v. Village of Gambell, 480 U.S. 531, 546 n. 12, 107 S.Ct. 1396, 94 L.Ed.2d 542 (1987). Here, to establish success on the merits, counsel must show that Thomas and his coplaintiffs are collaterally estopped from asserting the issues raised in their malpractice claims. The plaintiffs have not actually litigated the issues I discuss above, nor has any court decided those *268issues. Whether we apply the Anti-Injunction Act or the general law governing issue preclusion, our analysis is the same, and the district court plainly erred when it enjoined the D.C. Superior Court. Compare Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 149, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988) (holding that for the Act’s relit-igation exception to apply the party moving for an injunction must show that the issue “was itself actually litigated and decided by the District Court”), with Davis v. Davis, 663 A.2d 499, 501 (D.C.1995) (explaining that issue preclusion applies when “the issue is actually litigated and ... determined by a valid, final judgment on the merits”).
The majority may be correct that Thomas and his coplaintiffs suffered no harm, but that seems to me a merits question and not a preclusion one. That is, if the injunction is lifted, it may well be that the Superior Court can rule that there is no harm, and therefore no cause of action, but I believe that is for the Superior Court to determine and not for us. Like my colleagues, I agree that Thomas and his co-plaintiffs’ malpractice claim is very shaky. Unlike my colleagues, however, I believe that ruling is not for this Court to make.
For these reasons, I respectfully dissent.
. I disagree with the majority’s analysis of the rules governing class actions. The majority states that "no plaintiffs claim was sufficiently atypical to justify permitting class members to opt out, which is the key characteristic of ... (b)(3) class actions.” Slip Op. at 265 n.2. Rule 23(a) unequivocally states that one prerequisite to any class action is that the representative parties’ claims are "typical of the claims ... of the class.” Fed.R.Civ.P. 23(a). Specifically, a 23(b)(3) class action is justified whenever "the court finds that the questions of law or fact common to the members of the class predominate over any questions affect*267ing only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). The district court undoubtedly could have certified the Thomas class under 23(b)(3), even though — and, perhaps, because — the plaintiffs' claims were "no different in kind from those of other class members.” 139 F.3d at 236. Nevertheless, because the consent decree compelled the district court to certify the class under 23(b)(2), it had no reason to confront this question. Cf. Eubanks v. Billington, 110 F.3d 87, 96 (D.C.Cir.1997) (refusing to address whether "full (b)(3) protections” should be afforded to the plaintiffs because "the plaintiffs did not seek certification as ... a (b)(3) ... class”).
. As I have noted before, some sections of the Court Reform Act, Pub.L. No. 91-358, 84 Stat. 473 (1970), require D.C. ^courts "to be treated as state courts, others do not.” United States v. Mills, 964 F.2d 1186, 1198 (D.C.Cir.1992) (en banc) (Sentelle, J., dissenting). "Congress has not, for example, plainly extended the prohibition upon the issuance of federal injunctions staying state court proceedings, see 28 U.S.C. § 2283, to District proceedings.” Id. Indeed, whether D.C. courts are protected by § 2283 is a valid question that has not been resolved. There is no reason to suggest that the Anti-Injunction Act plays any role in the outcome of this case.