In a move that aims to clamp down on what the administration perceives as frivolous litigation against the government, President Trump issued a memorandum on March 11th, enforcing stricter adherence to a specific rule of the Federal Rules of Civil Procedure. The rule in question, 65(c), requires parties seeking injunctions against the Federal Government to provide a security bond to cover potential costs and damages if the injunction is ultimately deemed wrongful. The memorandum was published on the White House website and details the administration's position on the matter.
Activist organizations, according to the memo, have been obtaining injunctions far beyond the scope of relief contemplated by the Federal Rules of Civil Procedure and are accused of encroaching upon the executive policy-making process. The administration claims that these groups effectively act to slow down or halt the implementation of policies endorsed by the electorate, simultaneously imposing financial burdens on taxpayers. It is further stated that such suits distract the Department of Justice from its core mission, such as defending public safety, by having to redirect substantial resources to contest these cases.
Trump's memo insists that Federal courts must hold litigants accountable for their misrepresentations and ill-granted injunctions, citing the need to ensure that taxpayers do not bear the cost of injunctions that are incorrectly issued. It directs agency heads, in consultation with the Attorney General, to properly request security under Rule 65(c) equal to the government's expected monetary damages or costs from a wrongly issued injunction, unless there are extraordinary circumstances justifying an exception. The specified details to include in the requests for security under the rule point to a more aggressive stance being taken by the government to deter litigation that they view as baseless.
An excerpt from the memorandum, as published on the White House website, states, "One key mechanism is Federal Rule of Civil Procedure 65(c) (Rule 65(c)), which mandates that a party seeking a preliminary injunction or temporary restraining order (injunction) provide security in an amount that the court considers proper to cover potential costs and damages to the enjoined or restrained party if the injunction is wrongly issued." The president's policy is to ensure that costs and damages incurred if the government is found to have been wrongfully enjoined are not to fall on taxpayers.
The memorandum does not, however, represent a legally enforceable right or benefit. It stands as a clear directive, shaping the government's response to litigation seeking injunctions against it, and underscores the president's approach to judicial processes involving the executive branch. While the long-term impacts of this directive are yet to be seen, it marks a significant push by the Trump administration to assert control over the legal strategies employed by government agencies when facing judicial challenges.
