MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
Subject: Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c)
In recent weeks, a multitude of activist organizations, buoyed by a staggering influx of donations—often reaching into the hundreds of millions—and sometimes even fortified by government grants, have managed to secure broad injunctions far exceeding the intended scope of relief defined by the Federal Rules of Civil Procedure. This development effectively positions these groups as unwelcome players in the executive policymaking arena, thereby jeopardizing the integrity of our democratic processes.
This insidious encroachment on democracy is spearheaded by organizations adept at “forum shopping,” repeatedly filing suits that lack merit and serve more as platforms for fundraising and political theatrics, all without facing any significant consequences for their failures. Consequently, taxpayers are left to shoulder the financial burden of these extravagant legal battles, especially when funding and hiring decisions are impeded. More troubling is the delay in the implementation of government policies that citizens have supported through their votes. This entire scenario diverts the Department of Justice—our nation’s principal law enforcement entity—away from its core mission of safeguarding public safety, as it becomes bogged down in the quagmire of frivolous litigation.
The effective administration of justice within our federal courts hinges on mechanisms designed to deter baseless litigation, shield parties from unwarranted financial burdens, and streamline judicial processes. A pivotal element in this framework is Federal Rule of Civil Procedure 65(c) (Rule 65(c)), which stipulates that any party seeking a preliminary injunction or temporary restraining order (injunction) must provide security deemed adequate by the court to cover potential costs and damages incurred by the enjoined or restrained party in the event that the injunction is issued erroneously. Consistent enforcement of this rule is vital not only to protect taxpayers from bearing the financial fallout of wrongly issued injunctions but also to uphold the efficient administration of justice.
Therefore, it is the policy of the United States that parties seeking injunctions against the Federal Government must be held accountable for any costs and damages that arise should the government ultimately be found to have been unjustly enjoined or restrained. Federal courts should rigorously ensure that litigants are held responsible for any misrepresentations and improperly granted injunctions.
In accordance with applicable law, the heads of executive departments and agencies (hereinafter referred to as “agencies”), in consultation with the Attorney General, are hereby directed to ensure that their respective agencies properly invoke Rule 65(c) in federal district courts. This entails requiring plaintiffs to post security that reflects the potential costs and damages the Federal Government could incur from a wrongly issued injunction. This directive encompasses all lawsuits filed against the Federal Government seeking an injunction, where agencies can demonstrate expected financial damages or costs associated with the requested preliminary relief, unless extraordinary circumstances justify an exception.
When requesting security under Rule 65(c), agencies shall ensure that the request includes, among other specifics, the following:
- (a) Rule 65(c) mandates the court to require, in all applicable cases, that a movant for an injunction post security in an amount that the court considers appropriate to cover potential costs and damages to the enjoined or restrained party;
- (b) the security amount requested by the agency is based on a well-reasoned assessment of the potential harm to the enjoined or restrained party; and
- (c) failure of the party moving for preliminary relief to comply with Rule 65(c) will result in the denial or dissolution of the requested injunctive relief.
This memorandum does not create any rights or benefits, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other individual.
DONALD J. TRUMP
