Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 85 C 10068. Frank J. McGarr, Judge.
Before CUMMINGS and CUDAHY, Circuit Judges, and CAMPBELL, Senior District Judge.*fn*
CUDAHY, Circuit Judge. This case is the latest installment in a series of federal and state court lawsuits that concern the appellant's West Chicago Rare Earths Facility. It again raises, in a slightly modified form, the highly contentious issue of whose back yard will be the final resting place of wastes from the facility. In the current suit, Kerr-McGee Chemical Corporation ("Kerr-McGee") appeals the district court's refusal to enjoin a pending state court lawsuit. Kerr-McGee contends that a prior decision of this court, Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234 (7th Cir. 1985), cert. denied, 475 U.S. 1066, 106 S. Ct. 1378, 89 L. Ed. 2d 604 (1986), binds the State of Illinois and thus precludes the relief sought by the state in its state court suit. We hold that the district court correctly concluded that it did not have the authority under the Anti-Injunction Act, 28 U.S.C. § 2283 (1982), to enjoin the State of Illinois from seeking injunctive relief in state court.
Kerr-McGee and its predecessor companies used the West Chicago facility from the early 1930's until 1973 to produce various compounds derived from radioactive natural ores. These activities generated large quantities of solid and liquid wastes that emit low levels of radiation. Kerr-McGee stopped processing ores in 1973 but continues to possess and store the wastes at its West Chicago facility under license from the Nuclear Regulatory Commission (the "NRC"). The federal government, through the NRC, and the State of Illinois want to regulate the storage and eventual disposal of these wastes. The clash between the two levels of government has produced a number of proceedings in state and federal court and before the NRC; we provide a brief summary of these proceedings insofar as they are relevant to the dispute before us.
A July 1977 order of the NRC required Kerr-McGee to seek amendment of the license under which it operates the West Chicago site. Pursuant to this order, Kerr-McGee asked the NRC for permission to undertake onsite encapsulation, which was the company's preferred course of disposal of the wastes. This would mean leaving the wastes in their present location but covering and sealing them. In may 1983, the NRC issued its Final Environmental Statement ("FES"), which outlined eight alternative proposals and recommended that the wastes be encapsulated and stored on the site for an indeterminate time period. The NRC, pursuant to the request of the Illinois Attorney General, authorized the Atomic Safety Licensing Board (the "ASLB") to hold a hearing on the FES. In October 1983, the licensing board determined, without a hearing, that the FES was facially inadequate. The NRC staff is presently drafting a supplement to the FES. The NRC anticipated that the supplement might be released in draft form in March 1987; the date of issuance of the final version of the supplement could not be estimated as it is dependent upon the extent and nature of the comments received on the draft supplement. Letter dated January 5, 1987 from NRC to ASLB panel. No hearings can be held before the licensing board until the final supplement is issued.
In addition to the proceeding before the NRC, a number of lawsuits involving the West Chicago facility have been appealed to this court. See City of West Chicago v. Nuclear Regulatory Comm'n, 701 F.2d 632 (7th Cir. 1983); Illinois v. Kerr-McGee Chem. Corp. 677 F.2d 571 (7th Cir.), cert. denied, 459 U.S. 1049, 74 L. Ed. 2d 618, 103 S. Ct. 469 (1982). The prior federal court suit that is central to the dispute here is Brown v. Kerr-McGee Chem. Corp., 767 F.2d 1234 (7th Cir. 1985), cert. denied, 475 U.S. 1066, 106 S. Ct. 1378, 89 L. Ed. 2d 604 (1986). The plaintiffs in Brown were private citizens who owned land that abutted the West Chicago facility; among the relief they sought was an injunction under state law ordering Kerr-McGee to remove all hazardous wastes to some other location. Id. at 1237. Kerr-McGee argued that federal law preempted a state-law injunction, and the district court agreed that federal law preempted such relief. This court affirmed, holding that when "radiation and nonradiation hazards are inseparable, federal law preempts a state-law injunction ordering removal of the wastes." Id. at 1240.
The State of Illinois appeared in Brown as amicus curiae in support of the plaintiffs' position when that case was before us on appeal. The state also initiated its own suit in state court against Kerr-McGee on April 28, 1980, seeking, inter alia, injunctive relief to require the removal and disposal of the industrial wastes located at the West Chicago facility in a manner consistent with state law. Illinois v. Kerr-McGee Chem. Corp., No. 80 CH 298 (Cir. Ct.).*fn1 Following this court's decision in Brown, Kerr-McGee filed a motion for partial summary judgment in the state court action, contending that the state's request for injunctive relief was preempted by federal law. The state court denied Kerr-McGee's motion on October 25, 1985. Kerr-McGee then filed this suit in district court, seeking to enjoin Illinois from proceeding with its state court suit.*fn2 On January 28, 1986, the district court denied Kerr-McGee's motion for a preliminary injunction and granted the state's motion to dismiss. The court found that the states was not bound by Brown, and the court was therefore prohibited by the Anti-Injunction Act, 28 U.S.C. § 2283 (1982), from enjoining the state court suit. Kerr-McGee Chem. Corp. v. Hartigan, No. 85 C 10068, mem. op. and order (N.D. Ill. Jan. 28, 1986) ("mem. op."). This appeal followed.
Kerr-McGee contends on appeal that the district court erred by failing to enjoin the state court proceeding. According to Kerr-McGee, the Anti-Injunction Act, 28 U.S.C. § 2283 (1982), clearly authorizes the district court to issue an injunction under the circumstances of this case. The Anti-Injunction Act provides:
A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.
28 U.S.C. § 2283 (1982). Kerr-McGee's position is that the third exception applies in this lawsuit: An injunction staying proceedings in the pending state court suit is necessary to "protect or effectuate" the prior decision of this court in Brown because the state is bound by the earlier judgment, and it is attempting to relitigate in state court the preemption issue decided in Brown. Appellant's Brief at 9. Kerr-McGee further argues that the district court has no discretion in this matter; if Illinois is bound by Brown, the court must issue an injunction. "When a federal court judgment concerns matters as to which federal law preempts state law, the Constitution requires that such friction be avoided." Appellant's Brief at 10 (citations omitted) (emphasis in original).
Under the Anti-Injunction Act, federal courts are absolutely prohibited from enjoining state court proceedings, unless the injunction falls within one of the three exceptions defined in the Act, Atlantic Coast Line R. Co. V. Brotherhood of Locomotive Eng'rs, 398 U.S. 281, 286, 26 L. Ed. 2d 234, 90 S. Ct. 1739 c(1970). The exception to "protect or effectuate its judgments" was added in 1948 to permit federal courts to enjoin litigation of matters finally adjudicated in federal court. See Harper Plastics, Inc. v. Amoco Chems. Corp., 657 F.2d 939, 946 (7th Cir. 1981); Samuel C. Ennis & Co. v. Woodmar Realty Co., 542 F.2d 45 (7th Cir. 1976), cert. denied, 429 U.S. 1096, 97 S. Ct. 1112, 51 L. Ed. 2d 543 (1977); 17 C. Wright, A. Miller, E. Cooper, Federal Practice and Procedure § 4226, at 340-41 (1978). If a state court suit is an attempt to relitigate a claim that would be barred by res judicata or collateral estoppel if brought in federal court, an injunction may issue to preclude the state suit from proceeding. 17 Wright, § 4226, at 343. The fundamental policy underlying both preclusion doctrines is that a "'right, question of fact distinctly put in issue and directly determined by a court of competent jurisdiction . . . cannot be disputed in a subsequent suit between the same parties or their privies . . . .'" Montana v. United States, 440 U.S. 147, 153, 59 L. Ed. 2d 210, 99 S. Ct. 970 (1979) (quoting Southern Pacific R. Co. v. United States, 168 U.S. 1, 48-49, 42 L. Ed. 355, 18 S. Ct. 18 (1897)). To establish that Illinois' state court suit is an attempt to circumvent Brown and that an injunction therefore could issue, Kerr-McGee must show that the state is bound by Brown even though it was not a party to that suit.
"[A] person may be found by a judgment even though not a party if one of the parties to the suit is so closely aligned with his interests as to be his virtual representative." Aerojet-General Corp. v. Askew, 511 F.2d 710, 714 (5th Cir.) (citations omitted), cert. denied, 423 U.S. 908, 96 S. Ct. 210, 46 L. Ed. 2d 137 (1975); see also Chicago, R. I. & P. R. Co. v. Schendel, 270 U.S. 611, 618, 70 L. Ed. 757, 46 S. Ct. 420 (1926); Robinson v. National Cash Register Co., 808 F.2d 1119, 1124 (5th Cir. 1987); Southwest Airlines Co. v. Texas Int'l Airlines, Inc., 546 F.2d 84, 95 (5th Cir.), cert. denied, 434 U.S. 832, 54 L. Ed. 2d 93, 98 S. Ct. 117 (1977).*fn3 The cases that have "preclude[d] relitigation by a nonparty have involved several factors in addition to apparently ...