Federal Rule of Civil Procedure 65: TROs, Injunctions, and Bonds

Federal Rule of Civil Procedure 65 governs how federal district courts issue temporary restraining orders and preliminary injunctions, the two mechanisms a judge uses to stop conduct before a case reaches final judgment. The rule sets what a party must show to get one, how long each type lasts, who is bound, what security must be posted, and how the order can be challenged, modified, or appealed. Its purpose is to preserve the status quo so that a later judgment still has something to operate on.¹

Temporary Restraining Orders Under Rule 65(b)

A TRO is the fastest form of relief the rule offers. A court can issue one without notice to the opposing party, but only when the moving party clears two hurdles. Specific facts in an affidavit or verified complaint must show that immediate and irreparable injury will occur before the other side can be heard, and the moving party’s attorney must certify in writing what efforts were made to give notice and why notice should not be required.¹ A weak explanation on that second point tends to sink the request.

Every TRO expires on its own terms. It cannot last more than 14 days unless the court extends it for good cause or the restrained party consents, and any extension is capped at another 14 days.¹ The short life is deliberate. Issuing orders without hearing from the other side is an extraordinary step, and the clock forces the court to move on to a preliminary injunction hearing at the earliest possible time.

Preliminary Injunctions and the Winter Test

A preliminary injunction is more durable and carries more procedural protection. The court cannot issue one without notice to the opposing party and an opportunity to be heard, which usually means an evidentiary hearing with witnesses, exhibits, and argument.¹ Once granted, it lasts until the court issues a final decision or a later order changes things.

The Supreme Court set the standard in Winter v. Natural Resources Defense Council, Inc. A plaintiff must show a likelihood of success on the merits, a likelihood of irreparable harm without the injunction, that the balance of equities tips in the plaintiff’s favor, and that an injunction is in the public interest.² All four must be satisfied. Falling short on any one is usually enough to deny the motion.

Irreparable harm is where most requests fail. Money damages recoverable after trial do not count. The harm must be something a later judgment cannot undo, such as destruction of unique property, disclosure of trade secrets, or violation of constitutional rights. The public interest factor carries extra weight when the order would affect people beyond the two parties, as in cases involving government regulations, environmental protection, or civil liberties.

The Bond Requirement

Rule 65(c) requires the party seeking a TRO or preliminary injunction to post security in an amount the court considers proper to cover the costs and damages the restrained party may incur if the order was wrongly issued.¹ The bond protects the restrained party and, in most circuits, also functions as a ceiling: a wrongfully restrained party generally recovers only up to the face value of the bond, not full actual damages.

Courts have wide discretion over the amount. Low-risk cases sometimes see nominal figures; complex commercial disputes can require bonds running into the millions. Some courts require no bond at all in civil rights cases. The federal government, its officers, and its agencies are explicitly exempt.¹ Failing to post the required security can lead the court to vacate the order.

What the Order Must Say and Who It Binds

Rule 65(d) governs both the drafting of the order and its reach. Every injunction and restraining order must state the reasons it was issued, spell out its terms specifically, and describe the prohibited or required acts in reasonable detail without referring back to the complaint or other papers.¹ Anyone reading the order should be able to tell exactly what it forbids or requires without hunting through the docket.

The order binds more than just the named parties. Under Rule 65(d)(2), it also binds the parties’ officers, agents, servants, employees, and attorneys, along with any other person acting in concert with them who receives actual notice of the order.¹ Actual notice is the trigger for non-parties. Someone who genuinely did not know about the order cannot be held in contempt for violating it, but once they know, they are bound whether or not they are in the lawsuit.

Violating a federal injunction exposes a person to civil or criminal contempt. Under 18 U.S.C. § 401, a federal court may punish contempt of its authority by fine, imprisonment, or both.³ Civil contempt typically continues until the person complies; criminal contempt punishes the violation itself.

Challenging or Dissolving a TRO

A party hit with an ex parte TRO does not have to wait it out. Rule 65(b)(4) lets the restrained party move to dissolve or modify the order on two days’ notice to the party who obtained it, or on shorter notice if the court sets it.¹ The court must then hear and decide the motion as promptly as justice requires. This is the main counterweight to the extraordinary power to issue an order without a hearing.

Preliminary injunctions can also be modified or dissolved, but the path is narrower. The moving party generally has to show changed circumstances, new evidence, or a clear error in the original ruling. Courts have inherent authority to revisit their own orders when the facts on the ground shift.

Appealing an Injunction Ruling

Preliminary injunctions are one of the few non-final orders that carry an immediate right of appeal. Under 28 U.S.C. § 1292(a)(1), the courts of appeals have jurisdiction over interlocutory orders that grant, deny, modify, or dissolve injunctions.⁴

TROs are generally not appealable. Their 14-day life makes appellate review impractical; by the time a circuit court could act, the order would ordinarily have expired or been replaced by a preliminary injunction. If a TRO goes against you, the faster route is a motion to dissolve under Rule 65(b)(4).

Consolidation With Trial on the Merits

Rule 65(a)(2) lets the court advance the trial on the merits and consolidate it with the preliminary injunction hearing, either before or after the hearing begins.¹ When it does, the case moves straight to a final resolution without a separate trial.

Even without consolidation, admissible evidence received at the preliminary injunction hearing becomes part of the trial record and does not have to be re-offered.¹ One protection is built in: consolidation cannot cut off a party’s right to a jury trial where that right otherwise exists.

Cases Rule 65 Does Not Fully Control

Rule 65(e) preserves several federal statutes that set their own injunction procedures. Rule 65 does not modify federal statutes governing injunctions in employer-employee disputes (including the Norris-LaGuardia Act), interpleader actions under 28 U.S.C. § 2361, or actions required to be heard by a three-judge court under 28 U.S.C. § 2284.¹ If your case sits in one of those categories, the specific statute controls where it conflicts with Rule 65’s defaults.

Filing an Injunction Request

A request for injunctive relief starts with a verified complaint or a supporting affidavit that lays out the factual basis for the emergency and the specific harm at stake. A formal motion accompanies the pleading, along with a proposed order containing the exact language the party wants signed. For a TRO sought without notice, the attorney’s written certification of notice efforts is required. Missing paperwork can defeat an otherwise strong request.

Filings run through the federal Electronic Case Filing system in most districts. The statutory filing fee for a civil action in federal district court is $350 under 28 U.S.C. § 1914, plus an administrative fee set by the Judicial Conference, bringing the total to roughly $405.⁵ A litigant who cannot afford the fee may apply to proceed in forma pauperis under 28 U.S.C. § 1915 by submitting an affidavit showing inability to pay.⁶

Once the case is filed and assigned, the summons and any court orders must be served under Rule 4 of the Federal Rules of Civil Procedure.⁷ Personal delivery by a process server or U.S. Marshal is the usual choice when actual notice matters, which it does with an injunction. The plaintiff must have the summons and complaint served within 90 days and file proof of service with the court.

1
Legal Information Institute. Federal Rules of Civil Procedure Rule 65 – Injunctions and Restraining Orders
2
Justia. Winter v Natural Resources Defense Council Inc, 555 US 7 (2008)
3
Office of the Law Revision Counsel. 18 USC 401 – Power of Court
4
Office of the Law Revision Counsel. 28 USC 1292 – Interlocutory Decisions
5
Office of the Law Revision Counsel. 28 USC 1914 – District Court Filing and Miscellaneous Fees
6
Office of the Law Revision Counsel. 28 USC 1915 – Proceedings In Forma Pauperis
7
Legal Information Institute. Federal Rules of Civil Procedure Rule 4 – Summons