dissenting.
I must respectfully dissent from the majority opinion in this case. In my opinion, this case is moot, and should be remanded to the district court with the direction that it be dismissed as moot. See United States v. Munsingwear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1951). Thus I believe that the court’s opinion in this case is no more than an advisory opinion, which is, of course, proscribed under article III of the Constitution.
The duty of federal courts is “to decide actual controversies by a judgment which can be carried into effect, and not to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.” Mills v. Green, 159 U.S. 651, 653,16 S.Ct. 132, 133, 40 L.Ed. 293 (1895). Thus, for example, where an appeal is taken from an injunction which has since expired by its terms, it has been held that “no ‘actual matters in controversy essential to the decision of the particular case before it,’ ” remain for a court to decide. Oil Workers v. Missouri, 361 U.S. 363, 367, 80 S.Ct. 391, 394, 4 L.Ed.2d 373 (1960), quoting United States v. Alaska S.S. Co., 253 U.S. 113, 116, 40 S.Ct. 448, 64 L.Ed. 808 (1920). Similarly, where the dispute which gave rise to the district court’s injunction has ended because of changed circumstances or the action of one of the parties, it would seem that there would no longer be an actual controversy for the court of appeals to decide. In such a case, an affirmance or reversal of the injunctive order could have no effect, since the injunction which gave rise to the appeal will itself have ceased to be effective.
That situation is precisely the one presented by this case. HEW has recertified Shore Manor and is currently providing Medicaid funding for services rendered to Medicaid patients. The patients who instituted the proceedings have attained their ultimate goal — Medicaid funding for Shore Manor — and no longer have any interest in this litigation.1 The State plaintiff asserts no continuing interest in the case and did not even file a brief.2 The injunction underlying this appeal enjoins HEW from terminating federal financial participation for services rendered to the patients’ class under the Medicaid program until the patients are afforded pre-termination hearings.3 That injunction has no present effect since federal funding is continuing and HEW asserts no present intention to seek decertification of Shore Manor. Any action by this court with respect to the injunction, which is the only order from which an appeal has been taken, would similarly be of no effect. It seems to me, therefore, that, since there is no present controversy and since any action by this court concerning the April 1, 1977 order would have no effect on the parties, this case must be deemed moot. See Oil Workers v. Missouri, supra. “To express an opinion upon the merits of the appellants’ contention would be to ignore [a] basic limitation upon the duty and function of [this court], and to disregard principles of judicial administration long established and repeatedly followed.” Id., 361 U.S. at 367-68, 80 S.Ct. at 394 (footnote omitted).
The appellant HEW, however — and only HEW4 — seeks to keep this case alive. HEW argues that it may in the future seek recoupment for Medicaid funds advanced to New Jersey pursuant to the district court’s injunction, which HEW claims was erroneously granted. Thus, the agency contends that a true controversy still exists, and that this court must decide the issue of whether the injunction was or was not erroneously issued by the district court.
*263The majority of this court agrees, and in my opinion has allowed HEW to bootstrap itself into a live controversy. The majority holds that this case is not moot,5 even though HEW in seeking to vindicate its purported rights would be required to seek recoupment in a separate action, and even though in that action HEW would presumably be able to challenge collaterally the propriety of the district court’s injunction, see American Bible Society v. Blount, 446 F.2d 588, 594-95 (3d Cir. 1971). In reaching this conclusion, the majority relies on Liner v. Jafco, Inc., 375 U.S. 301, 84 S.Ct. 391, 11 L.Ed.2d 347 (1964) and American Bible Society v. Blount, supra.
In those cases, the courts held that a case in which the underlying dispute had been settled was not moot, but in each case that result was reached because of plaintiff’s potential liability on a preliminary injunction bond.
In Liner v. Jafco, for example, a state court had enjoined picketing in connection with a labor dispute at a building site. The injunction was challenged as in excess of the state courts’ jurisdiction and in violation of the National Labor Relations Act. By the time the case reached the Supreme Court, construction at the site had been completed. The Court nonetheless held that the ease was not moot in that the plaintiff (f. e. the employer who sought the injunction) still had a substantial interest in the judgment. That interest derived from an injunction bond, given by plaintiff, which undertook to indemnify the defendants if the injunction was “wrongfully” issued. 375 U.S. at 305, 84 S.Ct. 391. Thus, since “the federal issues remain[ed] of operative importance to the parties,” id. at 306, 84 S.Ct. at 394, the Court ruled that the case was one where decision on the merits could affect the rights of the litigants in the case before it.6
American Bible Society v. Blount, supra, involved a challenge to new postal regulations by certain fourth class mailers. In successfully seeking a preliminary injunction, plaintiffs gave a preliminary injunction bond. See Fed.R.Civ.P. 65(c). While the suit was pending, the Post Office promulgated new regulations to which the plaintiffs did not object. The district court subsequently dismissed the case as moot, and the defendant Post Office appealed. Holding that the case was not moot, this court stated:
We do not think this case is moot because if we dismiss this action the Post Office Department will in all likelihood institute suit against the sureties at some future time and, in any such action, the court will be faced with deciding the same issues that are in contention here. No liability can arise on an injunction bond unless there is a final judgment in favor of the party enjoined. Therefore, in any independent action on the bond, the court will of necessity judge the merits of plaintiffs’ demand for a permanent injunction.
446 F.2d at 594-95 (footnote omitted). The court concluded that the parties’ interest in the bond sufficiently assured their adversity, their concern with the outcome of the case, and their vigorous presentation of the relevant arguments.7 Id. at 596.
*264The majority has analogized this case to Liner and American Bible Society because HEW has asserted that it intends to seek recoupment. I believe, however, that those cases are inapposite here, for two reasons.
First, Liner, American Bible Society, and Meyers (see n.7 supra) all involved situations where a preliminary injunction had been granted and the plaintiff had given an injunction bond. In each case the injunction bond by its express terms provided that the defendant would be indemnified for damages incurred because of compliance with an erroneously issued injunction. Here, however, although a preliminary injunction was granted, no such bond was ever ordered or obtained. That, in my opinion, is a crucial distinction. It has generally been held that, at least in federal courts, “[wjithout a bond no damages can be recovered at all. Without a bond for the payment of damages or other obligation of like effect, a party against whom an injunction wrongfully issues can recover nothing but costs, unless he can make out a case of malicious prosecution.8 It is only by reason of the bond, and upon the bond, that he can recover anything.” Meyers v. Block, 120 U.S. 206, 211, 75 S.Ct. 525, 528, 30 L.Ed. 642 (1887) (emphasis added). Thus, in Campbell Soup Co. v. Martin, 202 F.2d 398, 399 n.l (3d Cir. 1953), this court, faced with an argument similar to HEW’s in this case — viz, that a case was not moot because the defendant had a cause of action against the plaintiff for damages suffered by reason of compliance with an injunction — stated that “[tjhere is no such thing as a cause of action for damages incurred as a result of compliance with an injunction.” See generally, Note, Interlocutory Injunctions and the Injunction Bond, 73 Harv.L.Rev. 333 (1959).
I see no basis for distinguishing HEW’s asserted claim for “recoupment” from a “cause of action for damages incurred as a result of compliance with an injunction.” Thus, in my view, HEW would have no such claim for recoupment, unless a court were to depart from the general rule and hold that such a cause of action exists. While acknowledging this principle, and conceding that any “damages” that HEW might have suffered “accrued after, not prior, to the district court’s judgment on the merits,” Maj.Op. at 256, the majority nevertheless, without reference to any other precedent or authority, holds that the case is not moot. It so holds even though it is obvious that in this case — unlike the cases cited by the majority where there was a clear cause of action based on an injunction bond — there is no longer any aspect of this controversy which can be considered “live.”9 Here, unlike American Bible Society, there is no “reasonable likelihood that the parties . . . will be involved in a suit on the same issues in the future,” 446 F.2d at 595, since it is clear that HEW can have no cause of action based on a wrongfully issued injunction. Indeed, were we to hold that the assertion of a possible claim for damages based on an erroneously granted injunction rendered this case not moot, it seems to me that we would pave the way for any defendant appealing from an injunctive order to bootstrap himself into court, even though the underlying controversy had ended, simply by asserting a presently non-existent cause of action for damages caused by compliance with an injunction, see Campbell Soup Co. v. Martin, supra.
*265I believe the cases cited by the majority are improperly relied on in this case for still another reason. Assuming that the possibility that a recoupment action exists in HEW’s favor might be sufficient to save the case from mootness, the probability that HEW would be able to recover damages is far too remote and speculative to support a holding of non-mootness. In American Bible Society, Liner, and Meyers the defendant clearly had a viable cause of action based on the injunction bond. In each case the plaintiff had clearly suffered damages which would be recoverable on the bond. Here, however, it is far from clear — indeed it is unlikely — that HEW has a viable “recoupment” cause of action. Moreover, it is not at all clear that HEW has suffered any “damages” at all.
It is true that HEW was required to continue Medicaid funding to the State for Medicaid-covered services furnished by Shore Manor. However, HEW is required to reimburse the State, pursuant to a statutory formula, for payments made to Medicaid-eligible patients for services rendered by certified facilities. 42 U.S.C. § 1396b. Thus, had refunding been terminated for Shore Manor, and had the Medicaid patients been transferred to other, properly certified facilities, HEW would nevertheless have been required to provide its share of Medicaid funding for those patients. HEW, therefore, arguably has nothing to “recoup,” since it merely was required to expend funds which under statute had to have been expended in any event had the injunction not been granted.
In this regard, this case is akin to Japan Air Lines Co., Ltd. v. International Association of Machinists and Aerospace Workers, 538 F.2d 46 (2d Cir. 1976). In Japan Air Lines a union, appealing from the issuance of a temporary restraining order which had long since expired, argued that the case was nevertheless not moot because it intended to sue on the bond given as security for the temporary restraining order. The court rejected the argument, reasoning that the union was unable to show any compensable harm suffered as a result of the restraint. Meyers and American Bible Society were distinguished on the ground that in those cases, unlike Japan Air Lines, there was clear, present injury, and likelihood of eventual suit was overwhelming. 538 F.2d at 50-51.
The same result should obtain a fortiori in this case. Here, not only is it unclear that any damage was suffered as a result of the injunction, but it is virtually certain that no cause of action exists. The remote possibility that the issue of the propriety vel non of the injunction may arise in subsequent litigation is “too slender a thread,” id. at 51, on which to suspend a holding that this case is not moot. This court should not decide the “three-times removed” issue of, if HEW can bring a recoupment action, and if HEW suffered any injury because of compliance with the injunction, whether the district court’s injunction was erroneously granted. That issue becomes ripe only if HEW brings a recoupment action, if it is first determined that such a cause of action exists, and if HEW is found to have suffered any injury.
In sum, in my opinion, since the controversy underlying the injunction appealed from has ended, this case has become moot. HEW’s stated intention to assert a currently non-existent cause of action cannot serve to give life to an otherwise moot case. See also Oil Workers v. Missouri, supra. Contrary to the majority, I would remand to the district court with the direction that the entire case be dismissed as moot.
. See Letters of March 17, March 21, April 12, May 30, and June 27, 1978 from Robert Westreich, Esq., Assistant Deputy Public Advocate of New Jersey, counsel for appellee class of patients.
. See Letter of October 25, 1977 from the Attorney General of New Jersey, counsel for the State plaintiff.
. See Dist.Ct. Order of April 1, 1977, App. at 306-07.
. See text accompanying notes 1 and 2, supra.
. The majority’s introduction (Maj.Op. p. 253) to its discussion would lead to the belief that the majority concurs in my judgment that the Klein appeal is moot. If this were the case, of course, the appropriate disposition would be a remand to the district court with a direction that the case be dismissed. “Where it appears upon appeal that the controversy has become entirely moot, it is the duty of the appellate court to set aside the decree below and to remand the cause with directions to dismiss.” Duke Power Co. v. Greenwood Co., 299 U.S. 259, 267, 57 S.Ct. 202, 205, 81 L.Ed. 178 (1936).
It is clear, however, by its discussion of mootness (Maj.Op. pp. 255 256) and its conclusion (id. at p. 261: “we will affirm paragraph 2 of the district court’s order . . ” (emphasis added)) that the majority has considered this appeal on its merits, an undertaking proscribed by the doctrine of mootness.
. The Court was also impelled to this result because important federal labor policies implicated by the case might be frustrated by state court injunctions. That consideration, of course, does not apply in this case.
. Also, see Meyers v. Jay Street Connecting R.R., 288 F.2d 356 (2d Cir. 1961). In Meyers the court held that the case was not moot, *264although the order appealed from no longer restrained the appellants, since the preliminary injunction was conditioned on the giving of a bond to cover appellants’ losses in the event that a permanent injunction was held to be improper. The court stated that its “decision on this appeal, therefore, will determine whether appellants can recover on that bond and whether appellees are liable upon it.” Id. at 358.
I note in this regard that here, any decision we render will not determine whether HEW can recoup its payments or whether, if it can, the State will be liable. HEW calls upon us only to decide one issue with respect to recoupment, viz, the propriety vei non of the injunction.
. No claim of malicious prosecution is asserted in this case.
. All parties, as well as the majority, concede that this case does not involve a situation “capable of repetition yet evading review,” see Southern Pac. Terminal Co. v. ICC, 219 U.S. 498, 31 S.Ct. 279, 55 L.Ed. 310 (1911). Maj.Op. at 255 n.5.