By Eve Hill 

Civil rights advocates have their work cut out for them as the Trump administration persists with its slash-and-burn policy of reshaping the federal government. So far, advocates’ efforts have been broadly successful. As of March 11, 2025, The New York Times reported that 44 different court rulings filed since the inauguration had at least temporarily paused some of the President’s unlawful initiatives.

In an attempt to scare off President Trump’s challengers, the White House issued a statement in early March explaining a new policy of executive agencies: make plaintiffs pay for trying to defend their civil rights.

Only Judges, Not Trump, Can Enforce the Federal Rules of Civil Procedure

Essentially, President Trump seeks to deter litigants who oppose his agenda by adding a financial penalty for suing him and his agents. The White House’s official position, as expressed in the statement, is 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.” Invoking the Federal Rules of Civil Procedure, the President stated that Rule 65(c) “mandates” that a party seeking an injunction or temporary restraining order post bond in order to cover the potential costs and damages to a wrongfully enjoined or restrained party. But the Rule makes no such hard-and-fast assertion.

Courts are vested with broad authority to determine how much a plaintiff should be required to pay as security for seeking injunctive relief. Critically, this discretion includes the latitude to require no bond at all. Courts often elect to not require plaintiffs to pay a bond (or at least stick to a minimal security requirement) where the defendant would not be substantially injured by the issuance of an injunction. In other words, the White House’s assertion that this bond is a “mandate” plainly violates the separation of powers Rule 65 intended to preserve.

Trump’s Recent Attempts to Seek Rule 65 Bonds Have Failed

Just last month, a federal court in D.C. declined to require a bond from plaintiffs seeking injunctive relief against the Trump administration when it threatened a total freeze on government spending. Because the government defendants would not personally face any monetary injury from the injunction—which would merely return the federal government back to its spending status quo—the Court held that requiring a bond was inappropriate. It further reasoned that requiring the plaintiffs to post bond would effectively deny their right to judicial review of the administration’s actions by stifling the purpose of the laws under which they sought relief. “It would defy logic,” the Court stated, to “hold Plaintiffs hostage” for the harm the government defendants had caused. Nat’l Council of Nonprofits v. Off. of Mgmt. & Budget, No. CV 25-239 (LLA), 2025 WL 597959, at *19 (D.D.C. Feb. 25, 2025).

For similar reasons, injunctions seeking protection of constitutional rights are also usually shielded from Rule 65 bonds. A Maryland federal court recently issued a nationwide injunction against President Trump’s anti-DEI executive order and waived the security requirement for the plaintiffs. Because the plaintiffs sought to protect their First and Fifth Amendment rights, “and because a bond of the size Defendants appear[ed] to seek would essentially forestall Plaintiffs’ access to judicial review,” the Court set a nominal bond of zero dollars. Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 1:25-CV-00333-ABA, 2025 WL 573764, at *30 (D. Md. Feb. 21, 2025).

And yet, the White House is doubling down on its failed attempts to charge plaintiffs for seeking to preserve their civil rights.

The Real Threat to Civil Rights Suits

This memorandum comes in the wake of the Supreme Court’s recent decision in Lackey v. Stinnie, which limited plaintiffs’ ability to receive attorneys’ fees when courts grant them preliminary injunctions. The Court reasoned that plaintiffs who win these early victories, but whose claims are found to be moot prior to reaching a final decision on the merits, are not “prevailing parties,” and thus are not eligible for attorneys’ fees. In so holding, the Court has genuinely impaired civil rights lawyers’ ability to pursue the work they do. If defendants can voluntarily cease their harmful conduct after they’re subjected to preliminary injunctive relief, plaintiffs’ attorneys run the risk of never getting paid or recouping the costs of litigation, even when they bring strong, meritorious claims.

It appears that the Trump Administration feels emboldened by this ruling. Asking executive officers to “enforce” Rule 65 bonds is just one more way to make litigating against the federal government more expensive. With this urgence, the White House has taken the opportunity to pile on the difficulties plaintiffs’ attorneys will face in bringing important civil rights challenges to President Trump’s rogue, often impulsive, and unwieldy executive actions. Nevertheless, the real threat to civil rights suits is more likely to come from Stinnie’s effects, rather than the illusory enforcement powers the White House announced last week.

How Plaintiffs’ Lawyers Can Move Forward

If the first 50 days of President Trump’s current term in office are any indication of what the next 1400 will hold, plaintiffs’ attorneys should plan to be busy. We can trust that this announcement is nothing more than posturing about the “strength” of the executive branch and take pride in the fact that this community of lawyers and advocates has the administration on its heels. 

Though the White House’s announcement threatens a tougher road ahead for civil rights advocates, its practical effect on litigation is negligible. It does not change the law around Rule 65 bonds. It does not diminish judicial discretion. And under the vast majority of precedential cases on the topic, even across various jurisdictions, plaintiffs alleging constitutional violations (or who otherwise pose no monetary injury to the federal officials they sue) should be protected from punitive securities. In the grand scheme of the many roadblocks plaintiffs’ attorneys face when bringing suit for civil rights and other violations, we can consider these impending motions for Rule 65 bonds merely a speed bump on the path to vigorous advocacy.

Learn more about BGL’s recent work challenging the Trump administration’s harmful policies and practices here. Brown, Goldstein & Levy is a nationally-recognized leader when it comes to protecting the rights of individuals. If you or a loved one has encountered discrimination, consider contacting us today to discuss your situation.

ABOUT EVE HILL

Eve Hill is one of the nation’s leading civil rights lawyers, known especially for her work with clients with disabilities and LGBTQ+ clients. She has been recognized by Law360 as one of just 12 “Titans of the Plaintiffs’ Bar” for 2023, as well as by Lawdragon as one of the 500 Leading Lawyers in America (2022, 2023, and 2024). Her wide-ranging experience complements Brown, Goldstein & Levy’s decades of dedication to high-impact disability rights cases and its advocacy on behalf of individuals with disabilities and their families. Eve also leads Inclusivity, BGL’s Strategic Consulting Group, which works with organizations to promote the education, engagement, and employment of people with disabilities. Learn more about Eve here.

ABOUT BROWN, GOLDSTEIN & LEVY

Founded in 1982, Brown Goldstein & Levy is a law firm based in Baltimore, Maryland, with an office in Washington, D.C. The firm is nationally recognized in a wide variety of practice areas, including complex civil and commercial litigation, civil rights, health care, family law, and criminal defense. Above all else, Brown Goldstein & Levy is a client-centered law firm that brings decades of experience and passionate, effective advocacy to your fight for justice.