In a bold move to curb the growing number of lawsuits halting the implementation of recent executive policies, the Trump administration issued an executive order, “Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c),” aimed at making it more difficult for plaintiffs to obtain injunctions against the federal government. This order seeks to enforce a rule requiring plaintiffs to post a security equal to the government’s potential costs and damages if an injunction is later found to be unjustified. It also marks a major change in how the government will handle future legal challenges.
The Background: Injunctions Blocking Federal Policies
Over the past weeks, activist groups have increasingly used the courts to challenge executive actions, securing nationwide injunctions that delayed or blocked Presidential policies from being fully implemented. The administration argues that these lawsuits not only undermine the democratic process but also impose significant financial burdens on taxpayers, as agencies must divert resources to lengthy court battles.
The Proposed Solution: Enforcing FRCP 65(c)
Federal Rule of Civil Procedure 65(c) mandates that plaintiffs seeking an injunction must post a bond to cover potential costs and damages if the injunction is later found to be wrongly issued. However, courts, in their discretion, have waived or minimized this requirement in certain cases (e.g., when plaintiffs sue the government and the court finds waiver is in the public interest). The new executive order directs federal agencies, in coordination with the Department of Justice, to insist that courts strictly apply this rule.
Under this directive:
- Plaintiffs must post security in an amount that reflects the government’s financial losses if an injunction is later overturned.
- Federal agencies must formally request such security in all applicable cases.
- If plaintiffs fail to comply, courts should deny or dissolve the injunction.
The Impact: Raising the Stakes for Litigants
By strictly enforcing this rule, the administration aims to discourage frivolous lawsuits that seek to delay or obstruct federal policy. Plaintiffs will now have to weigh the financial risk of seeking an injunction, making it more difficult for activist groups to secure judicial interventions even where they can establish a likelihood of success on the merits—which is a requirement for injunctive relief.
Critics could argue that this move will suppress legitimate legal challenges by placing a financial barrier between plaintiffs and the courts. However, supporters could see this as a necessary step to prevent misuse of the judiciary for political activism.
As the legal battle over executive authority continues, this order signals a significant shift in how the federal government will respond to legal challenges going forward. Whether the courts will uphold this strict interpretation of Rule 65(c) remains to be seen.
If you have questions about this order or have been impacted by the administration’s recent executive orders, please contact Sam Finnerty or another member of PilieroMazza’s REAs, Claims, and Appeals, Government Contracts, or Litigation & Dispute Resolution practice groups.
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