For a long time federal law has allowed the government to ask courts to order plaintiffs who are suing the government to post bonds that would cover “potential costs and damages from a wrongly issued injunction.”
Seldom has that provision in the law been utilized.
But it will be now, under orders from President Donald Trump, who explained in a new order Thursday, “In recent weeks, activist organizations fueled by hundreds of millions of dollars in donations and sometimes even government grants have obtained sweeping injunctions far beyond the scope of relief contemplated by the Federal Rules of Civil Procedure, functionally inserting themselves into the executive policy making process and therefore undermining the democratic process.”
Those cases include challenges to Trump’s decisions to fire executive branch employees, to cut off inappropriate funding and to eliminate fraudulent activities in the federal spending.
“This anti-democratic takeover is orchestrated by forum-shopping organizations that repeatedly bring meritless suits, used for fundraising and political grandstanding, without any repercussions when they fail. Taxpayers are forced not only to cover the costs of their antics when funding and hiring decisions are enjoined, but must needlessly wait for government policies they voted for. Moreover, this situation results in the Department of Justice, the nation’s chief law enforcement agency, dedicating substantial resources to fighting frivolous suits instead of defending public safety,” Trump said.
He said a key to fighting such abuse is “Federal Rule of Civil Procedure 65(c) (Rule 65(c)).”
That 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,” Trump explained.
He said enforcement of that provisions “is critical to ensuring that taxpayers do not foot the bill for costs or damages caused by wrongly issued preliminary relief by activist judges and to achieving the effective administration of justice.”
He then ordered that it now is the “policy” of the U.S. to demand that parties seeking injunctions “cover the costs and damages incurred if the government is ultimately found to have been wrongfully enjoined or restrained.”
His instructions are that the heads of executive branch agencies are “directed to ensure that their respective agencies properly request under Rule 65(c) that federal district courts require plaintiffs to post security equal to the federal government’s potential costs and damages from a wrongly issued injunction.”
The instruction covers “all lawsuits filed against the federal government seeking an injunction where agencies can show expected monetary damages or costs from the requested preliminary relief, unless extraordinary circumstances justify an exception.”
He pointed out that the rule actually “mandates the court to require, in all applicable cases, that a movant for an injunction post security in an amount that the court considers proper to cover potential costs and damages to the enjoined or restrained party.”
In some cases the requirements could prove incredible. For example, in one case recently litigated, plaintiffs demanded that the government hand out $2 billion in cash to various organizations. Should a case such as that ultimately fail, the plaintiffs could be liable for the $2 billion in damages.