Before LUMBARD, Chief Judge, and SWAN and MOORE, Circuit Judges.
The Jay Street Connecting Railroad, whose main track extends for seven city blocks along the East River in Brooklyn, and four of its officers and directors appeal from an order enjoining them from abandoning the road until a certificate of the Interstate Commerce Commission permitting abandonment of the Jay Street line became effective. Since the injunction issued on May 26, 1959, the railroad has shut down pursuant to the Commission's certificate and thus we must consider whether the appeal should be dismissed as moot before passing upon the merit of appellants' attack upon the injunction. We hold that the appeal is not moot and, on the merits, that the injunction properly issued.
This controversy has been before us on several previous occasions. It was touched off by the railroad's announcement on August 6, 1958, that a shortage of funds would compel it to discontinue service in two days. Before it could carry out its plan, Judge Abruzzo, acting on the application of shippers and an owner of buildings serviced by the railroad, appellees herein, ruled that under § 1(18) of the Interstate Commerce Act, 49 U.S.C.A. § 1(18), the railroad could not be abandoned without a certificate of public convenience and necessity issued by the Interstate Commerce Commission. Pursuant to this ruling, he issued a temporary restraining order and later a preliminary injunction restraining the railroad and its officers from discontinuing operations. Issuance of the preliminary injunction was appealed to us and we affirmed in Meyers v. Jay Street Connecting Railroad, 2 Cir., 1958, 259 F.2d 532.*fn1
Following our decision, trial was held on various days between February 5 and February 20, 1959, and on April 14, 1959, the district court announced an opinion holding that the railroad and its officers should be enjoined from discontinuing service "until such time as the ICC passes upon [their application for abandonment of the line]." On May 26, 1959, the district court entered the order now before us, saying that the preliminary injunction, set forth in the margin,*fn2 was to remain in effect until the Commission's certificate permitting abandonment of the railroad "became effective."
Meanwhile the Commission, on April 13, 1959, issued an order in which they authorized abandonment of the railroad, 307 ICC 137. This order was amended on May 26, 1959, at which time the Commission stated that the order should take effect 30 days after service upon the appellees. The order was affirmed on June 26, 1959, by a statutory three-judge court in Jay Street Connecting Railroad v. United States, D.C.E.D.N.Y.1959, 174 F.Supp. 609.*fn3 No appeal was taken and service on the Jay Street line was in fact discontinued on or about June 27, 1959.
The appellees point to this sequence of events and argue that the appeal is moot since the order appealed from no longer restrains appellants.*fn4 We hold, however, that the appeal is not moot since the preliminary injunction was conditioned upon the giving of a $50,000 bond to cover appellants' losses in the event that a permanent injunction was found to be improper.*fn5 Our decision on this appeal, therefore, will determine whether appellants can recover on that bond and whether appellees are liable upon it.
The question presented is whether the requirement of Article III of the Constitution that there be a "case" or "controversy" is satisfied by the possibility that the issue now before us will, if we dismiss the appeal as moot, arise again in a suit upon the bond. Clearly, the Constitutional requirement that the facts be fully developed so that the court will avoid formulating a vague rule of law without the focus provided by a concrete set of facts to which it will apply has been met in this case. Compare United Public Workers of America (C.I.O.) v. Mitchell, 1947, 330 U.S. 75, 67 S. Ct. 556, 91 L. Ed. 754. The more doubtful question is whether the bond ensures that the parties will be sufficiently adverse and sufficiently interested in the outcome to satisfy Article III. We believe that it does.
If there is substantial likelihood that the decision of the court will be determinative in some future litigation between the same parties or their privies, the court can be confident that the parties' self-interest will impel them to press every argument at their command and thereby help the court reach the right result and the interest in judicial economy is insignificant since the same issue will in all probability come before the court at a later date. The federal courts have recognized this and have held that the mere possibility that their decision will be advisory because the parties do not take further steps does not of itself make a case moot.
Thus where a regulatory order expires before a challenge to a decision upholding it can be heard on appeal, the appeal will nevertheless be heard if the order is likely to be reissued. Southern Pacific Terminal Co. v. Interstate Commerce Commission, 1911, 219 U.S. 498, 31 S. Ct. 279, 55 L. Ed. 310; Gay Union Corporation v. Wallace, 71 App.D.C. 382, 112 F.2d 192, certiorari denied 1940, 310 U.S. 647, 60 S. Ct. 1098, 84 L. Ed. 1414; cf. Securities and Exchange Commission v. Okin, 2 Cir., 1943, 132 F.2d 784; compare Murphy v. Benson, 2 Cir; 1959, 270 F.2d 419. Similarly, if an allegedly illegal course of conduct is discontinued but is likely to be reinstituted if an appeal from an order prohibiting it is dismissed the case will not be considered moot. United States v. Trans-Missouri Freight Association, 1897, 166 U.S. 290, 307-310, 17 S. Ct. 540, 41 L. Ed. 1007; United States v. W. T. Grant Co., 1953, 345 U.S. 629, 73 S. Ct. 894, 97 L. Ed. 1303; United States v. Aluminum Company of America, 2 Cir., 1945, 148 F.2d 416, 448 (sitting as a court of last resort). Similar also are those cases where an attack is made upon a criminal conviction, the sentence for which has expired before an appeal can be heard. The Supreme Court has said that the justiciability of such appeals depends upon whether the appellant can show that the legality of his conviction might be a litigable issue in some future controversy. Fiswick v. United States, 1946, 329 U.S. 211, 67 S. Ct. 224, 91 L. Ed. 196 (Delay alien's eligibility for naturalization if he seeks naturalization); United States v. Morgan, 1954, 346 U.S. 502, 74 S. Ct. 247, 98 L. Ed. 248 (affect right to vote if seeks to vote; increase penalty under multiple offender statute if again convicted); St. Pierre v. United States, 1943, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199 (no showing "that further penalties or disabilities can be imposed upon him as a result of" conviction).*fn6
The decision on whether to hear a case of this nature depends primarily upon the likelihood that the issue before the court will arise in future litigation between the parties. See generally Diamond, Federal Jurisdiction to Decide Moot Cases, 94 U.Pa.L.Rev. 125, 133-46 (1946). It seems to us that the likelihood that the appellants in this case will sue upon the bond if victorious here is overwhelming.*fn7 Of course the mere fact that they have spent the money to come before us, represented by renowned counsel, does not necessarily establish that ultimate victory upon the bond is their reason for seeking an appeal and does not of itself make their appeal justiciable. Cf. People of State of California v. San Pablo & Tulare R. R., 1893, 149 U.S. 308, 13 S. Ct. 876; St. Pierre v. United States, 1943, 319 U.S. 41, 63 S. Ct. 910, 87 L. Ed. 1199. But this is indicative of their purpose and it is unrealistic to assume that they came before us merely seeking a moral victory.
To be sure, this case is different from the repetitive administrative order and discontinued conduct cases cited above in one respect. In those cases, the party asking the court to dismiss the appeal as moot could take advantage of the other party and prevent an appellate court from ever deciding upon the legality of their conduct by limiting the effective period of their orders or discontinuing their conduct at the crucial time. In this case, the appellees have no such power since the appellants could sue them upon the bond and that suit could not be made moot.
But the unsatisfactory nature of such a remedy is in itself reason to decide the issue between the parties now. In order to obtain judgment upon the bond the parties would have to relitigate the facts that were presented to the district court upon the injunction trial*fn8 and the issue would be whether an injunction could properly have been issued. Undoubtedly, the district court would then hold against them as it ...