Required Contents of the Order

Rule 65(b)(2) turns from what the movant must show to what the court must write. Every temporary restraining order issued without notice must state the date and hour it was issued, describe the injury and state why it is irreparable, state why it was issued without notice, and be promptly filed in the clerk's office and entered in the record.¹ The sworn facts and the attorney's certification are the movant's work, done in the papers that accompany the motion. These four items are the court's work, done in the order itself. An order can therefore fail the Rule even when the movant's papers are flawless: a judge who grants an ex parte request and leaves out any of the four has issued an order that lacks something the Rule says every such order must contain.

The person restrained was not in the room when the court acted. That person never heard the court's reasoning and had no chance to answer it. The Rule therefore makes the court record, at the moment it acts, when it acted, what injury it found, why that injury is irreparable, and why it dispensed with notice. The result is a document the restrained party can contest, on the motion to dissolve or modify that Rule 65(b)(4) allows on two days' notice,² and a reviewing court can examine. The written order makes the court's own ex parte decision reviewable.

Each of the four requirements can be confirmed from the face of the order, so they work as a checklist on an exam.

The four items fall into two groups. The first and fourth concern when the order was made and where it is kept; the second and third are the court's stated reasons. The next subsection takes the first group and the one after it takes the second. Rule 65(d) separately governs the contents and scope of injunctions and restraining orders, including a TRO, and is treated elsewhere; the items here are the ones Rule 65(b)(2) adds for orders issued without notice.³

Date, Hour, and Filing

Two of the four items fix the order in time and in the court's files: it must state the date and hour it was issued, and it must be promptly filed in the clerk's office and entered in the record.⁴ Both look clerical, yet the rest of the Rule depends on them. Everything the Rule says about how long a TRO lasts requires knowing when it began, and everything a restrained party can do about the order requires being able to find it.

The Rule's next sentence links the two. An order issued without notice expires at the time the court sets after entry, not to exceed 14 days.⁵ A period counted from entry is useless unless entry is fixed, and the stated date and hour fix it on the face of the order. The same entry also lets a court later compare the order's time with what the parties did and when.

Filing answers a different concern. A TRO issued without notice is made in the absence of the person it restrains, and that person must be able to locate and read it afterward. The clerk's office and the record are where a court keeps what it has done. Filing puts the signed paper with the clerk, and entry makes the order a recognized act in the case and the event from which the Rule counts. An order that existed only in chambers could not be found by the clerk, challenged by the restrained party, or examined by a reviewing court. The adverse party's motion to dissolve or modify, available on two days' notice, cannot be aimed at an order no one can locate.⁶ The word promptly ties the filing to the issuance. The Rule fixes no number of hours or days, so the question is whether the filing followed the signing without delay.

An exam stem that hands over a signed order reciting a vivid injury and asks whether anything is missing is usually testing these two items.

The Rule's text states what the order must contain and does not say what follows when an order omits one of these items.⁷ An answer should therefore identify the omission as noncompliance with Rule 65(b)(2) and tie it to the two functions above, the unfixed clock and the restrained party's lack of access, without announcing a particular penalty. The expiration clock that these entries make measurable is taken up in the next section on expiration and extension.

Stated Reasons in the Order

The other two items in the first sentence of Rule 65(b)(2) are statements of reasons. Every TRO issued without notice must describe the injury and state why it is irreparable, and it must state why the order was issued without notice.⁹ Both repeat, in the court's own voice, showings the movant has already made. The affidavit or verified complaint supplies specific facts about immediate and irreparable injury, and counsel's written certification reports the efforts to give notice and why notice should not be required. Those papers belong to the movant, and neither is the order. The Rule makes the judge write down what was found, so the burden shifts from the movant, who shows and certifies, to the court, which must state the reasons on which its order rests.

Written reasons matter because the restrained party was absent when the court acted. That party had no chance to argue that money could repair the harm or that a telephone call would have given notice. What the party does receive is the right to appear on two days' notice, or on shorter notice set by the court, and move to dissolve or modify the order.¹⁰ A motion of that kind needs a target. The order's description of the injury, its reason the injury is irreparable, and its reason for skipping notice are three propositions the defendant can attack, and a reviewing court later has the same three to assess. The written reasons stand in for the argument the defendant never got to make. They also discipline the judge at the moment of decision, since an order that cannot say why the harm is irreparable or why notice was skipped is an order the court has not yet justified even to itself.

The two statements answer different questions, and an order can supply one while omitting the other. The first has two verbs. To describe the injury is to say what will happen and to whom, such as the sale of a unique prototype, and to state why it is irreparable is to say why a money judgment after trial could not undo that sale. Those verbs track the sworn showing required of the movant under Rule 65(b)(1)(A). The second statement tracks the notice showing under Rule 65(b)(1)(B): it says why the court proceeded without hearing from the defendant, for instance that notice would likely have prompted the very sale the order is meant to prevent. Counsel's certification may inform that statement, but the Rule places the statement in the order, so a certification sitting in the file does not replace a sentence missing from the order.

Sampson v. Murray shows how a reviewing court tests a stated injury. The Court looked for the real basis of the finding that a discharged federal employee faced immediate and irreparable injury, then weighed the harms she alleged, which were lost income, charges on her record, and embarrassment before coworkers. It concluded that a temporary loss of income that will ultimately be recovered does not usually constitute irreparable injury.¹¹ An order that names that kind of harm as its irreparable injury hands a reviewing court a reason to apply exactly that standard. Sampson arose after an adversary hearing, and the Court treated the order as a preliminary injunction for that reason, so it illustrates scrutiny of a stated basis and does not decide what follows when an ex parte order omits its reasons.¹²

An exam stem that hands over a TRO and asks whether it complies is asking for a reading of the order's own words against these two requirements. Two orders show what that reading finds.

Hypothetical Illustration

A court issues a TRO reciting that the defendant announced he would sell the plaintiff's only copy of a unique prototype tonight, that no money award could replace the prototype, and that giving notice would likely prompt an immediate sale, so the order issues without notice. The order describes the injury, says why it is irreparable, and says why notice was skipped. The defendant has three concrete findings to contest, and a reviewing court has the same three to assess.

A second order says only that the plaintiff will suffer irreparable harm and that good cause appears for granting it. It names no injury, gives no reason the harm cannot be repaired, and never mentions why notice was dispensed with. The notice statement is missing outright, and the irreparable-harm statement is a label with nothing behind it, so the defendant and any reviewing court have nothing to test.

The first order contains every statement the Rule requires. Whether its prototype facts also satisfy the movant's earlier showing is a separate question, answered by the papers filed with the motion. The second order falls short on its face, because the omitted notice statement is an item the Rule requires of every TRO issued without notice, and the bare label of irreparable harm describes no injury. The Rule's text says what the order must contain. It does not say how much detail a statement needs or what follows when one is thin.¹³ An answer should therefore call the shortfall noncompliance with Rule 65(b)(2) and tie it to what the statements are for, which is giving the restrained party something to contest and the reviewing court something to assess, without announcing that boilerplate automatically voids an order.