Federal TROs and preliminary injunctions: 14 days, two days' notice, and a bond

Rule 65 separates two orders that get spoken of together. A preliminary injunction requires notice and lasts until trial. A temporary restraining order can issue without notice and expires quickly — and the conditions attached to that possibility are what most of the rule is about.

Preliminary injunctions require notice

FRCP 65(a)(1), in one sentence: "The court may issue a preliminary injunction only on notice to the adverse party."

There is no ex parte preliminary injunction. The mechanism for urgent relief before the other side can be heard is the TRO, and it comes with its own limits.

Consolidation — Rule 65(a)(2). Before or after beginning the hearing, the court may advance the trial on the merits and consolidate it with the hearing. Even without consolidation, "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." The court must preserve any party's right to a jury trial.

That is a trap worth knowing on both sides: what you put in at the preliminary-injunction stage may be in the trial record permanently.

A TRO without notice — four conditions

FRCP 65(b)(1): the court may issue a TRO without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and (B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

Both are required. The certification about notice efforts is a separate document obligation, and it has to explain why notice shouldn't be required — not merely that it wasn't given.

FRCP 65(b)(2) sets what the order itself must contain and how long it lasts. Every TRO 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.

And then the deadline:

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. The reasons for an extension must be entered in the record.

Fourteen days, one like extension for good cause, or consent. The clock runs from entry, and the order has to state the hour precisely because of it.

The hearing takes precedence

FRCP 65(b)(3): if the order issued without notice, the preliminary-injunction motion "must be set for hearing at the earliest possible time, taking precedence over all other matters except hearings on older matters of the same character."

Then the provision that puts the burden back on the movant: "At the hearing, the party who obtained the order must proceed with the motion; if the party does not, the court must dissolve the order."

A TRO obtained and then not pursued dissolves — the court has no discretion about it.

Two days' notice to dissolve

FRCP 65(b)(4):

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.

That is the fastest response window in the federal rules, and it exists precisely because the order was entered without hearing from you.

Security is a precondition

FRCP 65(c):

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.

"Only if" — security is framed as a condition of issuance, not an optional add-on, though the amount is the court's call and courts have set nominal amounts in appropriate cases.

The subdivision exempts the United States, its officers and its agencies from giving security.

FRCP 65.1 supplies the enforcement mechanism against a surety: by giving security, the surety submits to the court's jurisdiction and irrevocably appoints the clerk as its agent for service, and liability may be enforced on motion without an independent action.

What the order has to say — Rule 65(d)

Every order granting an injunction and every restraining order must:

(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.

That third requirement is strict. An order enjoining a party "from the conduct described in the complaint" doesn't comply.

Who is bound — Rule 65(d)(2). The order binds only the following who receive actual notice of it by personal service or otherwise: the parties; the parties' officers, agents, servants, employees and attorneys; and other persons who are in active concert or participation with any of them.

What Rule 65 doesn't reach

Rule 65(e) preserves other authority — the rule does not modify statutes relating to employer-employee disputes, or to actions affecting the rates of a state agency or a three-judge court's jurisdiction.

Rule 65(f) applies the rule to copyright-impoundment proceedings.

And the substantive standard — likelihood of success, irreparable harm, balance of equities, public interest — is not in Rule 65 at all. It comes from case law, which this site doesn't cover.

Related: staying a judgment

A different problem with a similar feel. FRCP 62(a) provides an automatic stay of execution for 30 days after entry of judgment, unless the court orders otherwise. FRCP 62(b) allows a party to obtain a stay by providing a bond or other security, effective when the court approves it.

The sequence

Where these rules live

• Rule 6 — Computing and Extending Time
• Rule 62 — Stay of Proceedings to Enforce a Judgment
• Rule 65 — Injunctions and Restraining Orders
• Rule 65.1 — Proceedings Against a Security Provider

Many districts add local requirements for emergency applications. This page explains what the rules say. It isn't legal advice, and the standard for granting injunctive relief comes from case law this site doesn't cover.