The Security a Moving Party Must Post

Rule 65(c) is written as a limit on the court's power. It says a court may issue a preliminary injunction or a restraining order only if the movant gives security in an amount the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. Security is therefore part of the relief, not an administrative step that follows it, and the amount is argued at the same hearing as everything else.

What the rule conditions

The clause has three moving parts. Security must be given by the movant. The amount is whatever the court considers proper. And its purpose is defined: to pay the costs and damages of a party later found to have been wrongfully enjoined. That last phrase is what makes the bond meaningful, because it fixes the event that triggers payment and, in most circuits, the ceiling on what can be recovered.

One exemption appears in the rule itself. The United States, its officers and its agencies are not required to give security, and a separate statute says the same thing in broader terms for any proceeding the government institutes or directs. States and municipalities have no equivalent federal exemption, though many are treated leniently on the amount, and some state statutes exempt their own governments in their own courts.

How the number is fixed

Courts start from the restrained party's likely loss during the period of the restraint. That is why the opponent's evidence on hardship does double duty: the same declaration that argues against relief also argues for a larger bond. A party that quantifies disruption in detail is better placed on both questions than one that describes the order as catastrophic without figures.

Countervailing considerations pull the figure down. The movant's ability to pay, the strength of the merits showing, the public character of the claim and the narrowness of the order all appear in reported reasoning. A restraint that merely preserves the status quo for a fortnight causes less measurable loss than one that halts trading, and the security should track that difference. The evidence assembled for the weighing of harm to each side is the evidence the court uses here.

Because the figure is discretionary, appellate correction is rare. Review is for abuse of discretion, and a reasoned decision within the range supported by the record will stand even where a different judge would have chosen a different number. The practical consequence is that the amount is effectively fixed in the district court, and a party that does not put in evidence at that stage has no realistic route to a different result.

Two figures are commonly confused. The security under Rule 65(c) protects the party restrained during the life of the order. A supersedeas bond under Rule 62 protects a judgment creditor while an appeal runs. They serve different parties at different stages, and a movant that has posted one has not satisfied the other. Where an injunction is appealed, the court of appeals may also impose terms of its own that secure the opposing party's position pending decision.

Zero, nominal, and the division among circuits

The text says the court may issue relief only if the movant gives security, which reads as mandatory. Several courts of appeals nonetheless hold that a district court may dispense with security entirely, treating the amount as wholly discretionary and reading zero as a permissible amount. The situations cited are indigent plaintiffs, civil rights and environmental claims brought in the public interest, and cases where the restrained party faces no realistic monetary loss.

Other circuits reject that reading and hold that some security must be required, though the sum may be nominal. The practical difference between a token bond and none is small for the movant and large for the opponent, because a nominal figure caps recovery at a nominal amount while still preserving the procedural route to claim it. Counsel should therefore know the forum's rule before assuming that a public-interest posture removes the requirement.

Statutory exceptions cut across the debate. Some enforcement provisions state that no security shall be required of a particular plaintiff, and where Congress has said so the argument is over. Others are silent, and the silence is read as leaving Rule 65(c) intact. Because these provisions sit in scattered subject-matter statutes rather than in the rules, a movant claiming an exemption should point to the text conferring it rather than to the character of the litigation.

Form, mechanics and what comes next

The rule speaks of security rather than of bonds, and courts accept several forms. A corporate surety bond is standard, and where one is used Rule 65.1 attaches automatically: the provider submits to the court's jurisdiction, appoints the clerk as its agent for service, and can be pursued on motion rather than in a separate action. Cash deposited into the court registry avoids the surety entirely and is common where the sum is modest.

Timing matters because the order is conditional. Where a judge signs an order that takes effect on the posting of security, the restraint does not operate until the security is in place, and a movant that has not arranged it in advance loses the days it was trying to save. That is one reason the bond has to be part of the plan before the fourteen-day restraining order is sought rather than after.

The security also survives into the next stage. When a restraining order becomes a preliminary injunction the court will usually revisit the amount on a fuller record, and the transition described in the conversion to a preliminary injunction is the natural moment to seek an increase. What happens if the restraint turns out to have been wrongful is a separate question, addressed in the claim against the bond after a wrongful injunction.