Temporary restraining orders and preliminary injunctions

Black-letter propositions

1. 01

   A court may issue a preliminary injunction only on notice to the adverse party, and it may advance the trial on the merits and consolidate it with the hearing, though evidence received on the motion that would be admissible at trial becomes part of the trial record and the party's jury right must be preserved.

2. 02

   Under Winter v. NRDC, a plaintiff seeking a preliminary injunction must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm without preliminary relief, that the balance of equities tips in its favor, and that an injunction is in the public interest; a mere possibility of irreparable harm is not enough.

3. 03

   A temporary restraining order may issue without notice only if specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury will result to the movant before the adverse party can be heard, and the movant's attorney certifies in writing the efforts made to give notice and the reasons it should not be required.

4. 04

   A restraining order issued without notice must state the date and hour, describe the injury and why it is irreparable, and state why it issued without notice; it expires at the time the court sets, not to exceed 14 days, unless the court extends it for good cause for a like period or the adverse party consents to a longer extension.

5. 05

   If a restraining order issues without notice, the preliminary-injunction hearing must be set at the earliest possible time, the movant must proceed with the motion or the court must dissolve the order, and the adverse party may move to dissolve or modify it on two days' notice or shorter notice the court sets.

6. 06

   The court may issue a preliminary injunction or restraining order only if the movant gives security in an amount the court considers proper to pay the costs and damages of a party wrongfully enjoined; the United States, its officers and its agencies need not give security.

7. 07

   Every injunction and restraining order must state its reasons, state its terms specifically, and describe in reasonable detail, without referring to the complaint or another document, the acts restrained or required; it binds the parties, their officers, agents, servants, employees and attorneys, and other persons in active concert with them who receive actual notice.

8. 08

   Under 28 U.S.C. section 1292(a)(1), a court of appeals has jurisdiction over interlocutory orders granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify them.

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Common wrong turns

• A strong showing on the merits does not excuse the failure to show likely irreparable harm.
• A restraining order without notice is short-lived, and the movant must be ready to proceed to a preliminary-injunction hearing.
• An injunction that refers the reader to the complaint to learn what is forbidden does not satisfy Rule 65(d).

Worked example

A company moves for an order barring a former employee from using its customer list, filing an affidavit that the employee will email it to a competitor tonight and asking that the court act without notice.

Practice this topic

Notice, duration, and security

Federal Rule of Civil Procedure 65(a)(1) allows a preliminary injunction only on notice to the adverse party and lets the court consolidate the hearing with the trial on the merits, preserving any jury right. Rule 65(b) lets the court issue a temporary restraining order without notice only where specific facts in an affidavit or verified complaint clearly show immediate and irreparable injury before the adverse party can be heard, and the movant's attorney certifies in writing the efforts made to give notice and why notice should not be required.

A restraining order issued without notice must state the hour it was issued and why, and it expires at the time the court sets, not to exceed 14 days, unless extended for good cause for a like period or by consent. Rule 65(c) permits either kind of order only if the movant gives security in an amount the court considers proper, with an exception for the United States, its officers and its agencies.

The Winter test

In Winter v. Natural Resources Defense Council, the Supreme Court held that a plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. The Court held that the Ninth Circuit erred in using a possibility standard for irreparable harm, and it described a preliminary injunction as an extraordinary remedy that should not be issued lightly.

The plaintiffs in Winter had sued the Navy to prevent its use of sonar in training exercises, and the Court concluded that the balance of equities and the public interest weighed strongly against relief.

Form, scope, and review

Rule 65(d) requires every injunction and restraining order to state its reasons, to state its terms specifically, and to describe in reasonable detail, and not by referring to the complaint or another document, the acts restrained or required. The order binds only the parties, their officers, agents, servants, employees and attorneys, and other persons in active concert or participation with them who receive actual notice of it by personal service or otherwise.

Twenty-eight U.S.C. section 1292(a)(1) gives the courts of appeals jurisdiction over interlocutory orders of the district courts granting, continuing, modifying, refusing or dissolving injunctions, or refusing to dissolve or modify them. That provision is one of the statutory exceptions to the final judgment rule discussed in the appealability module.

Frequently asked questions