D.C. restraining orders: a certificate is not enough, the court has to find you tried

The federal rule lets a lawyer certify what was done to give notice and leaves it there. The District rewrote that subparagraph, and the version it wrote asks for more from the movant and requires the judge to make a finding about it.

The court must find you made reasonable efforts — and furnished the papers

Rule 65(b)(1) permits a temporary restraining order without notice only if two things are satisfied. The first is the familiar showing of immediate and irreparable injury. The second is this:

the court finds that the movant has made reasonable efforts under the circumstances to furnish to the adverse party or its attorney, at the earliest practicable time prior to the hearing on the motion for such order, actual notice of the hearing and copies of all pleadings and other papers filed in the action or to be presented to the court at the hearing.

Four elements, and every one of them is more demanding than the federal text.

The court finds. Not "the movant's attorney certifies." A judge has to be satisfied, which means the affidavit has to give the judge something to be satisfied about.

Reasonable efforts under the circumstances. The standard is measured against what the situation allowed, so an applicant with two days' warning is held to more than one with two hours.

At the earliest practicable time prior to the hearing. Notice given as the hearing begins is unlikely to satisfy this.

Actual notice of the hearing, and copies of all pleadings and other papers — both what has been filed and what will be handed up at the hearing.

Read together, the District's "ex parte" restraining order is not really an application made in secret. It is one made after a genuine attempt to put the other side on notice and in possession of the papers, where that attempt did not produce an appearance. The papers to file are therefore not only the motion but a detailed account of what was sent, to whom, when, and how.

There is no drafting shortcut here. A recitation that "efforts were made" gives the court nothing to find.

Fourteen days, and two to get back in

Rule 65(b)(2) sets out what the order must contain and how long it lives:

Every temporary restraining order issued without notice must state the date and hour it was issued; describe the injury and state why it is irreparable; state why the order was issued without notice; and be promptly filed in the clerk's office and entered in the record. The order expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period or the adverse party consents to a longer extension.

Four contents and one deadline. Note that the order has to state why it was issued without notice — which is the finding discussed above, carried into the order itself.

Extensions come two ways: the court, for good cause, for a like period; or the adverse party's consent, for longer. Either way, "the reasons for an extension must be entered in the record."

The route back is short:

On 2 days' notice to the party who obtained the order without notice—or on shorter notice set by the court—the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires.

And the applicant carries an obligation of its own. If the order issued without notice, the preliminary injunction motion is set at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character, and at that hearing "the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order."

Evidence from the hearing becomes trial evidence

Rule 65(a)(2):

Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. Even when consolidation is not ordered, evidence that is received on the motion and that would be admissible at trial becomes part of the trial record and need not be repeated at trial. But the court must preserve any party's right to a jury trial.

Two things follow for anyone preparing an injunction hearing in Superior Court.

What goes in stays in. Admissible evidence received on the motion is part of the trial record automatically — no consolidation order required, and no second chance to present a witness better.

The jury right survives. Neither consolidation nor the carry-over of evidence can be used to move a case away from a jury that is entitled to hear it.

A preliminary injunction itself issues "only on notice to the adverse party."

Security, and who does not have to give it

Rule 65(c) makes security a condition of issuance rather than an option:

The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained. The United States, the District of Columbia, and officers or agencies of either are not required to give security.

"Only if." A District injunction does not issue on a promise to post a bond later, so the amount is a question to be addressed in the motion rather than left to the hearing.

The exemption covers both sovereigns — the United States and the District — and the officers or agencies of either.

What the order says, and who it reaches

Rule 65(d)(1) requires every injunction and restraining order to:

(A) state the reasons why it issued; (B) state its terms specifically; and (C) describe in reasonable detail—and not by referring to the complaint or other document—the act or acts restrained or required.

The prohibition on incorporation by reference is the one that catches drafters. An order that restrains a party "from the conduct described in paragraphs 12 to 19 of the complaint" does not comply, however clear those paragraphs are.

On who is bound, Rule 65(d)(2) is a closed list:

The order binds only the following who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties' officers, agents, servants, employees, and attorneys; and (C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).

Two conditions have to be met for anyone: being on the list, and receiving actual notice. A person in active concert with a party who has heard nothing about the order is not bound by it.

One statute the rule leaves alone

Rule 65(e):

These rules do not modify any applicable statute relating to temporary restraining orders or preliminary injunctions in actions affecting employer and employee.

Labor matters aside, the rule is the whole of the procedure. Subsection (f) of the federal rule — the provision on statutory three-judge courts — is marked "[Omitted]" in the Superior Court version, so there is no counterpart here.

A short checklist

If you are applying:

1. Try to give real notice, and document it. The court has to make a finding, not read a certificate.
2. Send the papers, not just word of the hearing — all pleadings filed and everything to be handed up.
3. Do it at the earliest practicable time, not on the courthouse steps.
4. State in the order why it issued without notice.
5. Come with a security figure. The order may issue "only if" security is given.
6. Prepare the injunction hearing as a trial. The evidence carries into the trial record.

If you are restrained:

1. Ask whether the court made the required finding. It is a condition of the order, not a formality.
2. Move to dissolve on 2 days' notice, or shorter if the court allows.
3. Check that the order describes the conduct itself, not paragraphs of a complaint.
4. Test actual notice before assuming a non-party is bound.

Where these rules live

• D.C. Super. Ct. Civ. R. 65 — Injunctions and restraining orders
• Responding to a D.C. complaint
• D.C. motion to dismiss
• D.C. summary judgment
• D.C. voluntary dismissal
• D.C. subpoenas

This page explains what the rules say. It isn't legal advice, and the statutes governing injunctions in employment matters are not carried on this site.