The Temporary Restraining Order and Its Fourteen Days
Rule 65(b) lets a district judge forbid conduct before the other side is heard, and then makes the order self-destruct. The fourteen-day ceiling, the single extension, and the hearing that has to be set at once are all part of the same bargain.
The rule in short
A temporary restraining order issued without notice under Federal Rule of Civil Procedure 65(b) expires at a time the court sets, not to exceed fourteen days after entry. The court may extend it once for a like period on a stated finding of good cause, or for longer if the restrained party consents. The motion for a preliminary injunction must be set for hearing at the earliest possible time, and the party that obtained the order must proceed at that hearing or lose it.
A temporary restraining order is the shortest-lived order a federal court issues. Rule 65(b) lets a district judge forbid conduct before the other side has answered, and sometimes before the other side knows the case exists. The price of that speed is duration. The order is written to expire, the rule fixes the outer limit at fourteen days from entry, and everything else in Rule 65(b) is arranged around getting to a real hearing before the clock runs out.
What the order holds in place
A restraining order preserves a position. It does not decide the case, and a judge who signs one has not found that the moving party is right. The finding is narrower: that specific facts in an affidavit or verified complaint show immediate and irreparable injury will occur before the adverse party can be heard. That is a statement about timing, not about merit, and the order should be read as buying the court a fortnight in which to hear both sides.
Most orders are prohibitory. They stop a transfer, a disclosure, a termination, a sale. Some are mandatory and require an act, and courts scrutinize those harder because undoing a compelled act is more difficult than lifting a prohibition. Either way the order must describe the restrained conduct in reasonable detail, and cannot do so by pointing at the complaint. The specificity a decree needs to be enforceable applies to a restraining order with full force.
The evidentiary record behind a restraining order is whatever the moving party filed. There is no discovery, no cross-examination and often no opposing paper at all. Judges compensate by reading the affidavits against themselves, discounting conclusions, and looking for the specific facts the rule demands. An affidavit that recites a legal standard without supplying the events behind it gives the court nothing it can act on, and the application is denied on the papers rather than set for argument.
Fourteen days, and one extension
Rule 65(b)(2) states that an order issued without notice expires at the time after entry that the court sets, and that the time set may not exceed fourteen days. The court may extend it for a like period, but only for good cause, and the reasons for the extension must be entered in the record. A longer extension requires the consent of the party restrained. Absent that consent, twenty-eight days is the whole of it.
The order itself has to carry the material that makes the deadline enforceable. It must state the date and hour it was issued, describe the injury and say why the injury is irreparable, state why it was issued without notice, and be promptly filed with the clerk and entered in the record. An order missing the hour of issue leaves the expiry ambiguous, which is a defect the restrained party can raise.
| Route | Notice before issue | Outer life | What ends it |
|---|---|---|---|
| Order issued without notice | None; a written certification of efforts is required | Fourteen days from entry | The expiry stated in the order |
| Extension for good cause | Usually on notice to a party now aware of the order | A further like period | Reasons entered in the record |
| Extension by consent | The restrained party agrees | Whatever period is agreed | The consent itself |
| Order issued after notice | Adverse party heard | Not fixed by the rule; courts still expect a prompt hearing | Ruling on the injunction motion |
| Order carried over on removal | Entered by a state court | The federal ceiling, measured from removal | Dissolution or modification by the district court |
The hearing the rule forces
An order issued without notice triggers an obligation, not just a deadline. Rule 65(b)(3) requires the motion for a preliminary injunction to be set for hearing at the earliest possible time, and that hearing takes precedence over all other matters except older matters of the same character. The party that obtained the order must proceed at the hearing. If it does not, the rule says the court must dissolve the order rather than let it lapse quietly.
The restrained party is not confined to waiting. On two days' notice, or on shorter notice the court sets, it may appear and move to dissolve or modify, and the court must hear and decide that motion as promptly as justice requires. Because the record at this point is thin, most of the work is documentary, and the practical question is whether the moving party's affidavits survive contradiction. The route from restraining order to a preliminary injunction after a contested hearing is the ordinary path.
An order that lapses does not end the application. The motion for a preliminary injunction survives, and the underlying claim survives with it. What lapses is the restraint. Counsel who treat expiry as a defeat sometimes stop pressing the motion, and the conduct they wanted stopped resumes while a live application sits undecided on the docket.
When an order outlives the limit
Courts do occasionally leave a restraining order in place past the ceiling, whether by inadvertence or because the hearing slips. The consequence is jurisdictional rather than cosmetic. A restraining order is ordinarily not appealable, because it is short and unreviewed. An order that continues beyond the permitted period over the restrained party's objection is treated as a preliminary injunction, and the courts of appeals then have jurisdiction under the interlocutory appeal statute.
The same reasoning applies where an order is entered after a full adversarial hearing and is not limited in time. Labels do not control. What matters is whether the order was granted with notice, how long it runs, and whether the restrained party had a real opportunity to contest it. Those factors also shape the interlocutory appeal from an order granting or refusing relief.
Security, and what has to be ready
Rule 65(c) permits an order only if the movant gives security in an amount the court considers proper, so the bond question arrives at the same moment as the order. A judge asked to sign at short notice will often fix a nominal figure and revisit it at the hearing, which means the amount is unsettled precisely while the restraint bites hardest. The rules on the security a moving party must post govern from the first order onward.
Because the fourteen days include the time needed to serve the order, arrange the bond, complete service of process and prepare for a contested hearing, the schedule is tighter than the number suggests. Day counting follows Rule 6, which includes intermediate weekends and holidays for periods of this length. A movant who obtains an order on a Friday afternoon has spent two of its days before anything can be filed.
Two practical consequences follow. The first is that the papers supporting a preliminary injunction should be substantially drafted before the restraining order is sought, because the hearing will arrive inside the same fortnight. The second is that the certification, the proposed order, the bond arrangements and a service plan all have to travel together. A judge willing to grant emergency relief is rarely willing to wait while the moving party assembles the rest of the file, and an application that arrives in pieces tends to be set for a noticed hearing instead, which is the outcome the movant was trying to avoid.
Points to carry away
- Rule 65(b)(2) caps a restraining order issued without notice at fourteen days from entry.
- One extension for a like period is allowed for good cause, and the reasons must be entered in the record.
- A longer extension is possible only with the consent of the restrained party.
- The order must state the date and hour of issue, the injury, and why it issued without notice.
- The party that obtained the order must proceed at the preliminary injunction hearing or the court must dissolve it.
- A restrained party may move to dissolve on two days' notice, or shorter notice set by the court.
Questions readers ask
Does the fourteen-day clock run from signature or from entry?
Rule 65(b)(2) measures the life of the order from entry, and requires the order itself to state the date and hour it was issued. In practice the two moments are usually minutes apart, because an order issued without notice must be promptly filed in the clerk's office and entered in the record. Where they diverge, the entry controls the outer limit. The rule also lets the court set a shorter period than the ceiling, and many judges do, pegging expiry to the date already fixed for the preliminary injunction hearing.
Can a court simply keep renewing a restraining order?
No. The rule permits one extension for a like period on a finding of good cause entered in the record, which brings the maximum to twenty-eight days without agreement. Beyond that, the restrained party must consent. Courts of appeals treat an order that runs past the limit over objection as a preliminary injunction rather than a restraining order, which makes it immediately appealable under the interlocutory appeal statute. Renewal without consent therefore does not extend the order so much as convert it.
What happens to a state court restraining order after a case is removed?
Orders entered before removal remain in full force and effect until the district court dissolves or modifies them, under the removal statute at 28 U.S.C. 1450. The Supreme Court has read that provision together with Rule 65(b), holding that a state restraining order issued without notice cannot outlive the federal ceiling once the case arrives in federal court. The remaining life is measured from removal, and a party wanting relief beyond that point must apply to the district court for a preliminary injunction.
Sources
- Federal Rule of Civil Procedure 65, Injunctions and Restraining OrdersSets the fourteen-day ceiling, the single like-period extension, and the contents every order must carry.
- Federal Rule of Civil Procedure 6, Computing and Extending TimeGoverns how the day count is made, including intermediate weekends and legal holidays.
- 28 U.S.C. 1450, Attachment or sequestration; securitiesKeeps orders entered before removal in force until the district court dissolves or modifies them.
- Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423Holds that a state restraining order issued without notice cannot outlast the federal limit after removal.
- 28 U.S.C. 1292, Interlocutory decisionsGives the courts of appeals jurisdiction over orders granting, continuing, modifying or dissolving injunctions.
- Administrative Office of the U.S. Courts, Federal Rules of Civil ProcedureThe judiciary's own posting of the current civil rules and the committee notes behind them.
Rapid Response Law is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Injunctions & TROs
Issuing an Order Without the Other Side Present
Federal Rule of Civil Procedure 65(b)(1) allows a restraining order without notice only where specific facts in an affidavit or verified complaint clearly show that immediate and irreparable injury will occur before the adverse party can be heard, and the movant's attorney certifies in writing the efforts made to give notice and the reasons notice should not be required. Both showings are conditions on the court's power, not formalities, and a failure in either is a ground to dissolve.
Weighing the Harm to Each Side
The third factor in the preliminary injunction test asks whether the hardship the movant would suffer without relief outweighs the hardship the order would impose on the party restrained. It is a factual comparison decided on declarations, exhibits and occasionally live testimony. Self-inflicted hardship counts for little, the scope of the order can change the answer, and where the government opposes relief the balance is treated as one inquiry with the public interest.
The Four Factors Every Application Must Satisfy
A party seeking a preliminary injunction or restraining order in federal court must establish that it is likely to succeed on the merits, that it is likely to suffer irreparable harm without relief, that the balance of equities tips in its favor, and that an injunction is in the public interest. The Supreme Court has rejected the view that a mere possibility of harm suffices. Where the government is the opposing party, the last two factors are treated as one inquiry.