President Trump's memorandum addresses what he describes as activist organizations obtaining overly broad injunctions against the Federal Government, often through meritless lawsuits and forum shopping.
The memorandum directs executive agencies to utilize Federal Rule of Civil Procedure 65(c) to require plaintiffs to post security for the anticipated costs and damages if an injunction is wrongly issued.
This aims to deter frivolous litigation, protect taxpayer funds, and free up the Department of Justice's resources.
Arguments For
Intended Benefit: Deterring frivolous lawsuits against the Federal Government, which can tie up resources and delay policy implementation. The memorandum aims to protect taxpayers from covering costs associated with meritless injunctions.
Evidence Cited: The memorandum alleges that activist organizations are obtaining sweeping injunctions beyond the scope of the Federal Rules of Civil Procedure, disrupting executive policymaking and the democratic process. It also points to the misuse of injunctions for fundraising and political grandstanding, as well as significant resources spent defending these suits.
Implementation Methods: The memorandum directs executive agencies to request security from plaintiffs seeking injunctions, based on a reasoned assessment of potential damages or costs to the government. The agencies are to cite Rule 65(c) as the legal basis for this request.
Legal/Historical Basis: The memorandum relies on Federal Rule of Civil Procedure 65(c), which states that parties seeking injunctions should provide security for potential costs and damages if the injunction is found to be wrongly issued.
Arguments Against
Potential Impacts: The memorandum could chill legitimate challenges to government actions, particularly for smaller organizations lacking the financial resources to post significant security. This could disproportionately affect environmental or public health groups.
Implementation Challenges: Determining the appropriate amount of security for each lawsuit could be complex and lead to protracted disputes between agencies and plaintiffs. The memorandum's broad scope might lead to inconsistent application across government agencies.
Alternative Approaches: Strengthening existing mechanisms to address frivolous lawsuits, such as stricter pleading standards or increased penalties for filing demonstrably baseless claims, may be less burdensome to potential plaintiffs and more effective.
Unintended Effects: The memorandum could lead to a decrease in judicial review of agency actions, which some may see as undermining checks and balances in the legal system. Smaller organizations may be unable to pursue legitimate claims against the government, even if successful.
MEMORANDUM FOR THE HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
Subject: Ensuring the Enforcement of Federal Rule of Civil Procedure 65(c)
This is the heading of the presidential memorandum.
It signifies a directive from the President to the heads of executive branch departments and agencies, concerning the enforcement of a specific rule within the Federal Rules of Civil Procedure.
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.
The memorandum begins by asserting that activist organizations have secured extensive injunctions exceeding the intended scope of the Federal Rules of Civil Procedure.
It suggests this process interferes with executive decisions and undercuts democratic processes.
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.
The memorandum alleges that these organizations strategically choose courts to file lawsuits, bringing baseless lawsuits for political reasons.
This, it states, makes taxpayers pay for these legal battles and delays policies, while also diverting Department of Justice resources away from important responsibilities.
The effective administration of justice in the Federal courts depends on mechanisms that deter frivolous litigation, protect parties from unwarranted costs, and streamline judicial processes. 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. Consistent enforcement of this rule 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.
The memorandum argues that the effective judicial system necessitates ways to discourage frivolous lawsuits, reduce expenses, and improve efficiency.
Rule 65(c) is identified as a crucial tool, requiring those filing for injunctions to provide financial security to cover potential losses for the opposing party should the injunction be deemed unjustified.
Enforcing this rule is suggested to be important in protecting tax payer funds and maintaining justice.
Therefore, it is the policy of the United States to demand that parties seeking injunctions against the Federal Government must cover the costs and damages incurred if the Government is ultimately found to have been wrongfully enjoined or restrained. Federal courts should hold litigants accountable for their misrepresentations and ill-granted injunctions.
The memorandum establishes a United States policy that parties seeking injunctions against the Federal Government must be financially responsible for costs and damages in the event the government is successfully shown to have been wrongly restricted.
It emphasizes that courts should ensure accountability for inaccurate claims and wrongly granted injunctions.
Consistent with applicable law, the heads of executive departments and agencies (agencies), in consultation with the Attorney General, 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 scope of this directive 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.
The memorandum directs executive departments and agencies, in consultation with the Attorney General, to request that Federal courts demand security from plaintiffs commensurate to the government’s potential financial losses due to an invalid injunction.
This applies to all lawsuits where the agency can show the potential costs or damages, barring exceptional circumstances.
In requests for security under Rule 65(c), agencies shall include, among other things, that:
(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 proper to cover potential costs and damages to the enjoined or restrained party;
(b) the security amount the agency is requesting is based on a reasoned assessment of the potential harm to the enjoined or restrained party; and
(c) failure of the party that moved for preliminary relief to comply with Rule 65(c) results in denial or dissolution of the requested injunctive relief.
The memorandum outlines specific information agencies should include in their requests for security under Rule 65(c), including the legal requirement under the rule, the justification for the specific amount requested, and consequences for non-compliance.
This memorandum is not intended to, and does not, create any right or benefit, 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 person.
This is a standard closing clause in many governmental documents, stating that the memorandum does not produce any legally actionable rights for any party against the U.S. government.
DONALD J. TRUMP
This indicates the President's signature.