Federal Rule of Civil Procedure 65(c) Does Not Require A Bond; and Court Orders are Enforceable Whether a Bond is Imposed or Not

Noah Brozinsky has been a civil and criminal law litigator since 2013. From 2018-2021 he supervised dozens of new lawyers at the Miami Public Defender’s Office, teaching criminal trial jury selection, trial advocacy, and advanced Fourth Amendment topics. Before joining Kaiser PLLC, Noah was an Assistant Counsel and National Negotiator with the National Treasury Employees Union. He now represents both plaintiffs and defendants in cases involving the federal government.

On March 31, 2025, The Wall Street Journal published this Op-Ed by Daniel Huff, an attorney for the first Trump administration and the House and Senate judiciary Committees, in which Mr. Huff wrote that the Trump administration can and should deem recent court orders as invalid and unenforceable because the courts didn’t order plaintiffs to pay a bond pursuant to Fed. R. Civ. P. 65(c). He’s wrong—the court orders enjoining a party are enforceable whether the plaintiffs are forced to pay a bond first or not, and litigants can’t ignore court orders simply because they disagree with a judge’s interpretation of a rule.

I recently wrote about Fed. R. Civ. P. 65(c) here to explain that this rule is discretionary despite the Trump administration’s call for AUSAs to demand payment upfront in injunction cases.

Contrary to case law, tradition, and precedent, Mr. Huff believes that recent court orders, including those enjoining the Trump administration from, among other things, banishing litigants to prisons in El Salvador without due process, are invalid because the court did not impose a bond first, pursuant to Fed R. Civ. P. 65(c). He advocates, “[the Justice Department] should move to invalidate existing injunctions where no adequate bond was required. And it should make clear—to judges and the public—that it won’t be bound by orders that are themselves invalid because the courts didn’t follow the procedure required to issue them.”

Mr. Huff complains that any decision to enjoin the United States without a bond payment would amount to a “fundamental failure to follow Rule 65(c)” and a departure from “the text, legislative history, and appellate court precedent—including from Judge Ruth Bader Ginsburg of the U.S. Circuit Court of Appeals.”

One commenter below Mr. Huff’s Op-Ed asked:

That commentator asks a good question.

To answer “Mitchell K,” there are two reasons this hasn’t come up in federal courts where plaintiffs are seeking to enjoin the Trump administration: First, the administration didn’t ask for a bond in most of these injunction cases; second Mr. Huff is just plain wrong to say that a bond is required to get an injunction in the first place, or that a bond is required to make the injunction enforceable.

Mr. Huff’s insinuation that the Executive Branch can ignore a court order based on a procedural nuance it doesn’t like is extremely dangerous.

As he well knows, litigants can’t decide which orders they believe are enforceable and which aren’t. No one can be a juror in their own case. A court order is an order, and parties are obligated to follow it—if they want to appeal, they should do so, and ask for a stay of the proceedings first, not ignore court orders on far-flung interpretations of well-settled rules of procedure.

And Mr. Huff ignores substantial case law on this subject, notwithstanding his suspicious (likely ironic) appeal to Ruth Bader Ginsburg. There is ample D.C. Circuit case law on the subject of Fed. R. Civ. P. 65(c) that says the rule is the opposite of what Mr. Huff suggests.

Courts in the DC Circuit have found that Rule 65(c) “vest[s] broad discretion in the district court to determine the appropriate amount of an injunction bond,” and this includes the discretion to require no bond at all. P.J.E.S. by & through Escobar Francisco v. Wolf, 502 F. Supp. 3d 492, 550 (D.D.C. 2020) (citing Simms v. District of Columbia, 872 F. Supp. 2d 90, 107 (D.D.C. 2012) (Sullivan, J.); see also DSE, Inc. v. United States, 169 F.3d 21, 33 (D.C. Cir. 1999) (same); Council on Am.-Islamic Relations v. Gaubatz, 667 F. Supp. 2d 67, 81 (D.D.C. 2009) (same).

Mr. Huff ends his Op-Ed with an appeal to the “millions more in taxpayer dollars” that will be “drained” by “activist judges” who are “rewriting policy from the bench.”

But, really, a policy more protective of the nation’s treasure—and a more conservative position, too—would be to halt the current administration’s practice of pursuing exotic and obviously unconstitutional ventures into dismantling the administrative agencies and norms forged from over 100 years of legislative compromise.

As I wrote before, the discretion embedded in FRCP 65(c) allows federal judges to forgo a bond requirement when imposing one would be unseemly, unnecessary, and tantamount to a ransom for the enforcement of a harmed plaintiff’s Constitutional rights. When a defendant’s actions are so obviously in the wrong, courts should not—and, thankfully, do not—impose a bond in advance of granting even temporary, injunctive relief.