The temporary restraining order that issues without the other side present and the fourteen days it lasts, the notice and certification a court requires first, the four factors every application must satisfy, the security a moving party must post, converting a restraining order into a preliminary injunction, the specificity a decree needs to be enforceable, who is bound by it, and appealing an order granting or refusing one.
Federal Rule of Civil Procedure 65(b)(1) allows a restraining order without notice only where specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury will occur before the adverse party can be heard, and the movant's attorney certifies in writing the efforts made to give notice and the reasons notice should not be required. Both showings are conditions on the court's power, not formalities, and a failure in either is a ground to dissolve.
The third factor in the preliminary injunction test asks whether the hardship the movant would suffer without relief outweighs the hardship the order would impose on the party restrained. It is a factual comparison decided on declarations, exhibits and occasionally live testimony. Self-inflicted hardship counts for little, the scope of the order can change the answer, and where the government opposes relief the balance is treated as one inquiry with the public interest.
A party seeking a preliminary injunction or restraining order in federal court must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm without relief, that the balance of equities tips in its favor, and that an injunction is in the public interest. The Supreme Court has rejected the view that a mere possibility of harm suffices. Where the government is the opposing party, the last two factors are treated as one inquiry.
A preliminary injunction may issue only on notice to the adverse party under Federal Rule of Civil Procedure 65(a)(1). The court may advance the trial on the merits and consolidate it with the hearing under Rule 65(a)(2), and evidence received on the motion that would be admissible at trial becomes part of the trial record without being repeated. The resulting order runs until final judgment or further order, must state its findings, and requires security fixed on a fuller record.
Federal Rule of Civil Procedure 65(d)(2) provides that an injunction or restraining order binds the parties, the parties' officers, agents, servants, employees and attorneys, and other persons who are in active concert or participation with any of them. Every category is conditioned on receiving actual notice of the order by personal service or otherwise. A stranger to the case who acts independently is not bound, and an order purporting to bind the world is enforceable only within these limits.
A temporary restraining order issued without notice under Federal Rule of Civil Procedure 65(b) expires at a time the court sets, not to exceed fourteen days after entry. The court may extend it once for a like period on a stated finding of good cause, or for longer if the restrained party consents. The motion for a preliminary injunction must be set for hearing at the earliest possible time, and the party that obtained the order must proceed at that hearing or lose it.
Under 28 U.S.C. 1292(a)(1) a court of appeals has jurisdiction over interlocutory orders of the district courts granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify them. A temporary restraining order is ordinarily not appealable, though an order that operates as an injunction may be treated as one. Review is for abuse of discretion on the ultimate ruling, with legal conclusions reviewed afresh and facts for clear error.
Rule 65(b)(1)(B) requires the movant's attorney to certify in writing any efforts made to give notice to the adverse party and the reasons why notice should not be required. The certification is signed by counsel, filed with the application, and read as a representation to the court. It must describe concrete attempts rather than assert that notice was impracticable, and it must give a reason for proceeding one-sided that is tied to the facts of the case rather than to convenience.
Federal Rule of Civil Procedure 65(c) permits a court to issue a preliminary injunction or 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. The United States, its officers and its agencies are exempt by rule and by statute. Courts of appeals differ on whether a district court may dispense with security entirely or must set at least a nominal sum.
A party that was restrained and is later found to have been wrongfully enjoined may recover the costs and damages caused by the restraint from the security posted under Rule 65(c). Liability is enforced on motion under Rule 65.1 rather than by separate suit, and the security provider is already before the court. In most circuits the amount posted operates as a ceiling, so a defendant that did not contest the figure when it was fixed has limited its own recovery.
Federal Rule of Civil Procedure 65(d)(1) requires every order granting an injunction and every restraining order to state the reasons why it issued, state its terms specifically, and describe in reasonable detail, and not by referring to the complaint or another document, the acts restrained or required. The requirements protect a party facing contempt, and they give a reviewing court something concrete to examine. An order that fails them can be vacated regardless of the merits.
Irreparable harm is injury that a later award of damages could not adequately repair, and it must be shown to be likely rather than merely possible. Loss of goodwill, disclosure of confidential information, destruction of a going concern and the loss of a unique asset are the categories courts most often accept. Delay by the movant is treated as evidence that the harm is tolerable, and statutory presumptions of harm exist in only a few fields.
