Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c)

TLDR

This memorandum directs federal agencies to enforce FRCP 65© by demanding security bonds from plaintiffs seeking injunctions against government actions. The administration argues this addresses “forum-shopping” and “meritless suits” that delay policy implementation and burden taxpayers with costs. Agencies must request courts require plaintiffs to post security equal to potential damages, potentially creating financial barriers for organizations challenging executive actions.

President Trump issued a memorandum directing federal agencies to enforce Federal Rule of Civil Procedure 65© when facing injunctions or temporary restraining orders. This executive action requires agencies to demand that plaintiffs seeking injunctions against the federal government post security bonds to cover potential costs and damages if the injunction is later found to be wrongfully issued.

The memorandum frames the issue as a response to “activist organizations” obtaining “sweeping injunctions far beyond the scope of relief contemplated by the Federal Rules of Civil Procedure”. According to the directive, these organizations are “forum-shopping” and bringing “meritless suits” that:

• Insert themselves into executive policymaking
• Undermine the democratic process
• Force taxpayers to cover costs when government actions are enjoined
• Delay implementation of policies
• Divert Department of Justice resources from public safety matters

The directive specifically instructs agency heads, in consultation with the Attorney General, to request that courts require plaintiffs to post security equal to the government’s potential costs and damages from wrongly issued injunctions. This applies to all lawsuits seeking injunctions where agencies can demonstrate expected monetary damages or costs.

Federal Rule of Civil Procedure 65© states that courts may issue preliminary injunctions or temporary restraining orders “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”.

When requesting security under this rule, agencies must argue that:

1. Rule 65© mandates courts to require security in applicable cases
2. The requested security amount is based on a reasoned assessment of potential harm
3. Failure to comply with Rule 65© should result in denial or dissolution of the injunctive relief

This memorandum represents a significant shift in how the administration will approach litigation challenging its policies. While the directive claims to be enforcing an existing rule, it interprets Rule 65© as creating a mandatory requirement rather than a discretionary one. The language suggests the administration views the rule as removing judicial discretion, stating parties “must cover the costs and damages” and that Rule 65© “mandates” courts to require security.

The administration argues that injunctions can cost taxpayers millions or even billions of dollars, especially when they mandate continued funding. However, critics may view this as an attempt to deter legitimate legal challenges by raising the financial stakes for organizations seeking to challenge government policies.

The memorandum does not create any new legal rights or benefits enforceable at law or equity against the United States or its agencies. Rather, it directs how existing agencies should approach litigation strategy when facing injunction requests.

The directive could create a substantial financial barrier for organizations seeking to challenge executive actions through injunctions. By requiring plaintiffs to post security bonds equal to the government’s potential costs and damages, many public interest groups, non-profits, and advocacy organizations may be deterred from filing lawsuits due to limited financial resources.

Historically, district court judges have often waived the Rule 65© security requirement for non-governmental organizations and public interest groups that lack sufficient funds. The administration’s push for “consistent enforcement” appears designed to reduce these waivers, potentially creating what legal scholars describe as a “chilling effect on litigation and challenges to executive agency actions”.

While the memorandum frames the issue as targeting “frivolous litigation,” it applies broadly to all lawsuits seeking injunctions against federal government actions where agencies can demonstrate monetary harm. This could affect legitimate legal challenges alongside any potentially meritless ones.

It’s important to note that judges still retain discretion under Rule 65©, and many have historically declined to require bonds from plaintiffs challenging government actions. The executive order directs agencies to request these securities but cannot guarantee courts will impose them.

The broader context suggests this is part of a pattern of actions targeting the legal community. CNN reports that the Trump administration is “waging a war against the legal establishment” with a “growing list of targets”. This memorandum appears to be one component of a larger strategy to limit legal opposition to administration policies.