The Security Requirement

Security for Injunctions

The Security Requirement

Federal Rule of Civil Procedure 65(c) attaches a price to emergency relief. The court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.¹ Both orders are interim. A temporary restraining order (a TRO) gives immediate relief until the court can hold a hearing on a preliminary injunction, and a preliminary injunction gives relief until the merits are tried. Each exists to preserve the status quo until the court can decide the case.²

The words "only if" make security a condition on issuance. A judge who finds that the movant is likely to succeed on the merits, likely to suffer irreparable harm without relief, favored by the balance of equities, and supported by the public interest has applied the Winter v. Natural Resources Defense Council factors. Those findings decide whether relief is warranted, but they do not complete the judge's work. The grant of a preliminary injunction must also be accompanied by security from the plaintiff, and a TRO carries the same condition.³ The merits showing decides whether the court will act, and the security decides whether the order may go out.

The rule leaves the amount to the court, which sets the sum it considers proper. It supplies the measure: the money stands behind the costs and damages of any party later found to have been wrongfully enjoined (the usual word for the target of a preliminary injunction) or wrongfully restrained (the usual word for the target of a TRO). The security may be a bond or a guarantee from the movant.⁴ It is commonly called an injunction bond, meaning a bond required of an injunction applicant to cover the costs incurred by a wrongfully enjoined party.⁵

The condition follows from how interim orders are made. The court acts on a shortened procedure and on a showing of likelihood rather than proof, so some orders will prove mistaken. Without security, a restrained party who wins at trial would hold only a claim against a movant who may be unable to pay. The bond supplies a ready fund from which the wrongfully enjoined party can collect actual damages without running the risk that the movant is judgment-proof.⁶ The risk of an erroneous emergency order falls on the party who asked the court to move quickly.

The condition applies to both orders, whether or not the adverse party has been heard. A preliminary injunction may issue only on notice to the adverse party, but a TRO does not carry that limit.⁷ The rule draws no line between the two on security, so an order issued without notice carries the same condition as one issued after a hearing.

The condition reaches only the two interim orders the rule names. An injunction entered after a full trial on the merits falls outside the text. That fits the rule's purpose, because the risk the bond covers is that an interim order rests on a preliminary showing that later proves wrong, and a trial has by then decided the merits. The rule's last sentence excuses the United States, its officers, and its agencies from giving security, a point taken up in a later section.⁸