Perhaps one of the most extraordinary of legal proceedings is an ex parte application for a temporary restraining order or TRO. Although ex parte grants of a TRO may seem unfair at first glance, a deeper analysis shows that the laws on TRO both at federal and state levels fairly balance the right to notice against the right to use the legal system to avert imminent and irreparable harm.
Generally ex parte temporary restraining orders are reserved for urgent matters where requiring notice would subject one party to irreparable harm. A TRO usually lasts only until the motion for preliminary injunction is heard when the court ultimately decides to either terminate the TRO or issues a preliminary injunction.
A quick reading of the federal procedural rules governing TROs shows that the adverse party is provided ample protection against an ex parte grant of a TRO. Every TRO issued without notice must state the date and hour it was issued, describe the injury, and state why the injury was determined to be irreparable. The order expires at the time the court sets, which is not to exceed 14 days unless the court extends it for a like period for good cause, or the adverse party consents to an extension. If for any reason the order is extended, the reasons for an extension must also be entered into the record.
If the order is issued without notice, the motion for a preliminary injunction must be set for hearing at the earliest possible time. This should take precedence over all other matters except hearings on older matters of the same character. At the hearing, the party who obtained the order must proceed with the motion and if the party does not, the court must terminate the TRO.
The statute also mentions that on 2 days’ notice to the party who obtained the order without notice or on shorter notice set by the court, the adverse party may appear and move to dissolve or modify the order. The court must then hear and decide the motion as promptly as justice requires. The Supreme Court has further clarified “Rule 65(b) does not place upon the party against whom a temporary restraining order has issued the burden of coming forward and presenting its case against a preliminary injunction”. These durational and other limitations imposed on temporary restraining orders help cure the serious problem of ‘ill-considered injunctions without notice.
The stringent restrictions imposed by Rule 65 on the availability of ex parte TROs reflects the fact that our entire jurisprudence does not favor the Court making any determinations prior to providing reasonable notice and an opportunity to be heard to both parties to a dispute. However, the rules do recognize the need, albeit only in extraordinary circumstances, that certain situations necessitate the grant of an ex parte temporary restraining order.