Two Halves of Rule 65(d)

Form and Reach of Injunctions

Two Halves of Rule 65(d)

Rule 65(d) governs every order granting an injunction and every restraining order, and it asks two separate questions about each one: what must the order say, and whom may it bind?¹ Two short hypotheticals show the difference. In the first, a court orders a company only to “comply with the settlement agreement.” Anyone who wants to know what the company must do has to hunt down another document, and that is the problem subdivision (d)(1) addresses. In the second, the order is perfectly clear, but the plaintiff later asks the court to hold a stranger to the dispute in contempt for helping the defendant. That is a problem for subdivision (d)(2), which asks whether the person falls within one of the groups the order may reach.

A procedural rule polices the wording and audience of a single court order because of what an injunction does. It directs a particular person to act or to refrain from acting, and the court enforces the direction through its contempt power.² Courts hold the remedy back in some settings. They usually refuse, for example, to enjoin a criminal prosecution once it has begun, because the person can raise any defense in the prosecution itself and the interest in orderly procedure favors keeping hands off the criminal process.³ When a court does decide that an injunction is warranted, Rule 65(d) controls how it writes the order and whom the order reaches.

The Seventh Circuit explained how seriously courts take the rule in H.K. Porter Co. v. National Friction Products: “Rule 65(d) is no mere extract from a manual of procedural practice. It is a page from the book of liberty.”⁴ The order at issue, entered April 15, 1968, merely incorporated a settlement agreement by reference. The court called it “beyond cavil” that the order thereby ignored the rule’s mandatory requirement that an injunction “shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained.” The error was “serious and decisive,” and it precluded the plaintiff from successfully invoking the district court’s contempt powers.⁵ The drafting lesson is direct: an order that sends its reader to another document for its content fails the rule, and the failure can defeat contempt. Read against that statement, the two subdivisions divide the work. Subdivision (d)(1) lets a person who may be punished learn from the order itself what it demands. Subdivision (d)(2) confines the order to the people the rule lists.

The rule’s text draws no line between temporary and permanent relief. It covers every order granting an injunction and every restraining order, so it reaches temporary restraining orders and preliminary injunctions as well as permanent injunctions.⁶ A preliminary injunction is a provisional remedy, entered while the merits remain undecided,⁷ and a party might expect looser drafting standards for such an order. The rule’s text gives no support for that expectation.

Do not confuse the rule with the test for granting preliminary relief. Neither the Judicial Code nor the federal rules impose substantive standards for obtaining a preliminary injunction, so federal courts apply the traditional equitable test: a likelihood of success on the merits, irreparable injury if relief is delayed, a balance of hardships favoring the movant, and no adverse effect on the public interest.⁸ That test decides whether the court issues the injunction. Rule 65(d) decides what the order must say and whom it binds once the court has decided to issue it.

Each half of the rule has its own subdivision, and keeping them apart is the organizing idea for everything that follows:

• Subdivision (d)(1) governs the document. The order must state the reasons why it issued,⁹ state its terms specifically,¹⁰ and describe in reasonable detail, not by referring to the complaint or another document, the act or acts restrained or required.¹¹
• Subdivision (d)(2) governs the audience. The order binds only the parties,¹² the parties’ officers, agents, servants, employees, and attorneys,¹³ and other persons in active concert or participation with either group,¹⁴ and it binds them only if they receive actual notice of the order.¹⁵

An earlier wording of the rule, quoted in a footnote to SEC v. Savoy, 665 F.2d 1310 (D.C. Cir. 1981), already joined the two halves in a single sentence. The order had to set forth its reasons, be specific, and describe the restrained acts in reasonable detail without reference to the complaint or another document. It bound only the parties, their officers, agents, servants, employees, and attorneys, and those in active concert or participation with them who received actual notice.¹⁶ The current text splits the same points into separate subparts, and this chapter follows that split. It takes the three contents requirements first, then asks what follows when an order falls short of them, and finally turns to the persons bound. When you meet an order on an exam, ask the two questions separately: whether the document says clearly what it demands, and whether the person being held to it falls within one of the listed categories.