The Trump Administration’s Pointless Memo Adds Nothing to Federal Rule of Civil Procedure 65(c)

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.

Across the country, non-profits, labor unions, private individuals, state governments, and more are filing for emergency relief in federal court. They’re asking for injunctions—court orders to stop what they perceive as unconstitutional actions by the Trump administration. The goal in the earliest stages of these suits is to “stop the bleeding”—that is, to get temporary relief from the courts so the parties can more fully litigate the issues without the danger of ongoing harm making any relief moot.

For instance, the National Treasury Employees Union is asking for an injunction to stop the acting director of the Consumer Financial Protection Bureau’s alleged efforts to halt that agency’s statutorily-mandated work. The need for urgency is predicated upon the massive inconvenience and financial harm that will befall consumers if the CFPB shuts down. Elsewhere, the ACLU is suing President Trump to enjoin him from deporting alleged gang members to Central America under an 18th Century law, because once they’re deported, the likelihood of any material relief, for all practical purposes, vanishes.

In response to these suits and others against the President and government agencies, on March 11, 2025, President Trump issued a memorandum entitled, “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c).”

This memo states, “it is the policy of the United States to demand that parties seeking injunctions against the Federal Government must cover the costs and damages incurred if the Government is ultimately found to have been wrongfully enjoined or restrained.”

The memo says that attorneys for the Federal Government must move the court to order that parties seeking preliminary injunctions or temporary restraining orders pay a security when filing their cases, pursuant to Federal Rule of Civil Procedure 65(c).

But it is already the rule in federal courts that parties seeking injunctions or temporary restraining orders must be prepared to pay their adversaries for the costs of defending the case if the plaintiffs lose. Upon closer inspection, this March 11 directive may be nothing more than an aggressive gesture—legal throat clearing—designed to scare parties against filing for injunctions against the United States.

The memo is akin to a motion in limine demanding the trial court “enforce the rule against hearsay” generally, instead of pointing to a specific at-issue statement that might play a part in the case. That is, this White House memo is nothing more than a general demand that parties in federal court “follow the rules,” except it’s unnecessarily couched in bellicose language about “policy” and “demands” in order to intimidate litigants out of suing the United States and, perhaps, give constituents a false impression that the Executive Branch holds sway over the judiciary.

Of course parties suing the government know they’re likely responsible for fees if they lose, and of course a judge is going to enforce the Rules of Civil Procedure—that’s what judges do.

Federal Rule of Civil Procedure 65(c) states:

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, its officers, and its agencies are not required to give security.

The purpose of this rule is to prevent parties from filing for frivolous injunctions and restraining orders. The thinking is that if the party suing for relief has to put up a security—a bond they’ll forfeit to the other side if they eventually lose their case on the merits—they’ll think twice about pursuing relief. Requiring parties to pay bonds helps ensure the courts won’t be clogged with frivolous suits.

By this memo, the Trump administration is asking the Department of Justice to make sure they ask for money down at the start of a lawsuit against the United States to “ensur[e] that taxpayers do not foot the bill for costs or damages caused by wrongly issued preliminary relief by activist judges.”

In this context, the phrase “activist judges” clearly means any trial judge who rules against the Trump administration.

But, again, this memo states nothing new—asking for a security at the start of an injunction or TRO proceeding is the whole point of FRCP 65. The White House’s memo serves no purpose other than menacing would-be litigants against turning to courts for enforcement of their rights.

The key phrase courts focus on when determining how much security has to be ante’d up in Rule 65 is “an amount that the court considers proper.” Courts don’t have to order hefty bonds to consider injunction and TRO requests. Circuit courts have held that trial courts need not impose any bond at all because the rule, by its plain language, gives the court wide discretion.

For example, in the Ninth Circuit case Barahona–Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir.1999), the court held that the trial judge may dispense with the filing of a bond altogether when it concludes there is no realistic likelihood of harm to the defendant from enjoining his or her conduct. That is, parties aren’t required to put money down if there’s no credible chance they’re going to lose. This safeguards, for example, that non-profit organizations or labor unions can sue to stop the government from obviously unconstitutional actions without having to pass around a collection plate first. Discretion in Rule 65 ensures “the little guy” has access to the court.

The Second Circuit interprets Rule 65 the same way: the phrase “in such sum as the court deems proper” indicates that the district court is vested with wide discretion in the matter of security. And it has been held proper for the court to require no bond where there has been no proof of likelihood of harm, or where the injunctive order was issued “to aid and preserve the court’s jurisdiction over the subject matter involved.” Ferguson v. Tabah, 288 F.2d 665, 675 (2d Cir.1961).

This language from Ferguson or similar phrasing also appears in cases from the First, Fifth, Sixth, Seventh, and Tenth Circuits, as well as the Circuit Court for the District of Columbia. Virtually everywhere, it is well-understood that litigants only have to post such bond or security as the trial court deems appropriate. When the government has obviously overstepped and litigants are suing to stop Executive overreach, district courts understandably will not require them to pay a ransom for their constitutional rights.

Congress had the power to divest courts of discretion with regard to securities when FRCP 65 was written, but chose not to. Rule 65 gives the trial court the option to require no security at all.

Access to the courts is a fundamental right. The right to redress wrongs should not be conditioned on a party’s ability to pay a fee up front in the event that they lose a seemingly unlosable case.

Announcing a new government policy of requesting bonds in cases against the United States serves no purpose beyond intimidating would-be litigants. Parties suing the Trump administration for an injunction or TRO already know they’re on the hook for damages if they lose—no one needs to be reminded of the courage it takes to sue the United States.