Safeguards After Issuance

Safeguards After Issuance

A TRO issued without notice restrains someone who has not been heard, and the Rule answers that problem with two devices that begin to operate once the order exists. One is a hearing on the preliminary injunction, set at the earliest possible time. The other is the restrained party's own motion to dissolve or modify. The first depends on the movant and the court, and the second depends on the defendant. Between them, the order is tested from both sides.

The 14-day limit could not do that work alone. An order issued without notice expires at the time the court sets, not to exceed 14 days, unless the court extends it for a like period for good cause or the adverse party consents to a longer extension, and the reasons for an extension must be entered in the record.¹ That limit shortens the restraint, but it does not bring the restrained party into court.

One treatise, discussing restraining orders that affect possession of property, shows what the safeguards protect. It treats an order as improper when notice could have been given but was not, when a bond could have been posted but was not, or when the defendant could have been given a prompt opportunity to seek dissolution but was not.² The third item corresponds to the motion to dissolve discussed below, and the expedited hearing serves the related goal of limiting restraint without a hearing. The hearing comes first.

Expedited Injunction Hearing

When the order issues without notice, Rule 65(b)(3) requires the court to set the preliminary-injunction motion for hearing at the earliest possible time, ahead of all other matters except hearings on older matters of the same character. At that hearing the party who obtained the order must proceed with the motion, and if that party does not, the court must dissolve the order.³ The sentence puts one duty on the court and one on the movant. It reaches only orders entered without notice, which are the orders entered while the restrained party was absent.

The court's duty answers the problem of time. A TRO is a stop-gap for a truly urgent situation, meant to preserve the status quo long enough for a preliminary-injunction hearing. After that hearing, the court dissolves the order if it is not justified or replaces it with a preliminary injunction.⁴ The court therefore sets the hearing as soon as possible, to minimize the time of restraint without one. A preliminary injunction, in contrast, lasts until trial or modification and could last for years, so the brief life of a TRO is the whole point of it.⁵ Enjoining a defendant when there has been very little opportunity to receive evidence is an extraordinary remedy, and that is why the hearing cannot be allowed to drift.⁶ The exception for older matters of the same character keeps the priority from letting a newer emergency displace one that has waited longer.

The movant's duty answers a problem of incentive. A movant who has already won restraint of the other side has little reason to hurry toward an adversary hearing, and without a duty to go forward the order could sit as a standing restraint that its proponent never had to prove. The Rule closes that gap by making the party who obtained the order the one who must proceed, and by making the consequence mandatory. The word must carries the weight. A discretionary power to dissolve would let a movant gamble that the court would leave the order in place, while a mandatory one leaves no restraint standing that its own proponent will not defend.

The duty works alongside the extension rules covered earlier in this chapter. An extension for good cause carries the order forward, but it does not replace the hearing, and a movant who asks for more time at the hearing and does not go forward has not proceeded.⁷ One appellate decision shows how a court treats a restraint that is allowed to linger. The trial court extended a TRO for another ten days without comment, and the appellate court reversed. Under the ten-day periods then in force, a TRO could not run past ten days unless cause was shown for another ten, and after that it could not be extended at all without the consent of the party enjoined.⁸ The periods are now 14 days, but the structure is the same: a first period, an extension only on cause entered in the record, and then only consent.

Once the hearing is held, the TRO has done its work. It terminates at that point, and the judge may withhold further provisional relief altogether or substitute a preliminary injunction.⁹

Two questions sort an exam stem about an ex parte TRO followed by delay. The first is whether the order issued without notice, since this safeguard reaches only those orders. The second is whether the party who obtained the order proceeded at the hearing. If the movant did not, the answer is dissolution, and an argument that the movant needs more time does not rescue the order.

Motion to Dissolve or Modify

The restrained party need not wait for the movant to act. Under Rule 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, and the court must hear and decide the motion as promptly as justice requires.¹¹ To dissolve an order is to end it before its stated expiration, and to modify it is to change its terms, usually by narrowing what it forbids. The motion therefore reaches both questions an absent defendant would have raised if present: whether the order should exist at all, and whether it reaches further than the emergency justified.

Students most often slip on the direction of the notice. Earlier in this chapter, notice ran from the movant to the defendant. Here the roles reverse: the defendant is the one moving, and the movant, who had its turn without the defendant present, is the one who must be told. The Rule allows shorter notice, but only notice set by the court, so the defendant cannot shorten the period on its own. The shorter option matters because a TRO ends in a matter of days in federal practice, and two days of notice can consume a large share of the order's life.¹²

The motion exists because the order was entered without the defendant. A defendant is not bound by a TRO until notified of its terms, the order terminates in a matter of days, and the defendant may ask the court to dissolve it sooner.¹³ A TRO also ends before its stated time if the court dissolves it on the defendant's motion.¹⁴ The modification half of the motion matters for a related reason. A court acting on one side's papers may write an order broader than the emergency required, and a defendant who can show that the harm justifies only a narrower restraint gives the court a way to keep the protection and lift the excess.

The motion also supplies what the treatise on restraining orders treats as essential. An order is improper if the defendant could have been given a prompt opportunity to seek dissolution but was not.¹⁵ Rule 65(b)(4) is that opportunity, and the court's duty to decide as promptly as justice requires keeps it real, since a motion left undecided until the order expired would give the defendant nothing.

The dissolution motion should be kept apart from the preliminary-injunction hearing just discussed. That hearing runs on the movant's initiative, and the movant must pursue it at the earliest possible time or lose the order. The dissolution motion runs on the defendant's initiative and attacks the TRO itself at any point while the order stands, without waiting for the hearing. If the hearing comes first, the TRO terminates there, and the judge may withhold further provisional relief or substitute a preliminary injunction.¹⁶ The motion also gives the order's required statements a use. The order must describe the injury, explain why it is irreparable, and explain why the order issued without notice, and those are the statements the defendant can contest.¹⁷

The Rule's text states what the motion requires but does not say what a court must do with one that skips notice, so an answer on the second scene should name the missing notice and tie it to the movant's right to be told before it must defend the order. The third scene shows why the Rule says modify as well as dissolve: the defendant need not win outright to obtain a meaningful narrowing.