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214.

Injunctions

Affirmative relief by way of injunction is sought from time to time to advance major public interests or enforce governmental functions. Such injunction actions may be specifically provided for by statute. See, e.g., United Steelworkers of America v. United States, 361 U.S. 39 (1959) (injunction under the Taft-Hartley Act). Injunction actions may also be maintained to enforce statutes which do not specifically provide for such a remedy. See, e.g., In re Debs, 158 U.S. 564 (1895); United States v. United Mine Workers, 330 U.S. 258 (1947). Injunctive relief may also be sought from an appellate tribunal under the All Writs Act, 28 U.S.C. § 1651(a). See, e.g., FTC v. Dean Foods Co., 384 U.S. 597 (1966).

A preliminary injunction is an extraordinary and drastic remedy. Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 572-73 (5th Cir. 1974). No injunction will issue if there is an adequate remedy at law. See Matthews v. Rodgers, 284 U.S. 521, 525 (1932); Aircraft & Diesel Equipment Corp. v. Hirsch, 331 U.S. 752 (1947); Porto Rico Telephone Co. v. P.R. Communications Auth., 189 F.2d 39 (1st Cir.), cert. denied, 342 U.S. 830 (1951). Irreparable injury is an essential prerequisite to the issuance of a preliminary injunction. County of Santa Barbara v. Hickel, 426 F.2d 164 (9th Cir. 1970), cert. denied, 400 U.S. 499 (1971). Temporary loss of income or other alleged injury involving only the loss of money is not irreparable injury. Sampson v. Murray, 415 U.S. 61, 90 (1974). The injury alleged must be immediate and non-speculative. Louisiana Environmental Society, Inc. v. Coleman, 524 F.2d 930, 933 (5th Cir. 1975). There must be a convincing showing of irreparable injury, and mere litigation expense will not suffice. Sierra Club v. Morton, 405 U.S. 727 (1972). Even if there will be irreparable injury, the granting of a temporary injunction is not a matter of right and may be refused in the exercise of judicial discretion.

In the exercise of its discretion a court "of equity should pay particular regard for the public consequence in employing the extraordinary remedy of injunction." See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982). If an injunction will impair the public interest, it should be denied. Cf., Yakus v. United States, 321 U.S. 414, 440 (1944); see also Hecht Co. v. Bowles, 321 U.S. 321, 331 (1944).

No security can be required of the United States or an officer or agency thereof. Fed. R. Civ. P. 65(c). However, as to other parties, Fed. R. Civ. P. 65(c) speaks in mandatory terms, to the effect that no temporary restraining order or preliminary injunction shall issue except upon the giving of security by the applicant. Pioche Mines Consol., Inc. v. Dolman, 333 F.2d 257, 273-74 (9th Cir. 1964), cert. denied, 380 U.S. 956 (1965). Security is required to be in such sum as the court deems proper for the payment of such costs and damages as may be incurred or suffered by any party who is found to have been wrongfully enjoined or restrained. There is no liability on the bond or other security unless there is a final judgment in favor of the party enjoined. See American Bible Society v. Blount, 446 F.2d 588 (3d Cir. 1971). Liability is for "resulting and consequential" damages. See Silvers v. TTC Industries, Inc., 484 F.2d 194 (6th Cir. 1973). Damages will be limited to the amount of the bond, First Citizens Bank & Trust Co. v. Camp, 432 F.2d 481 (4th Cir. 1970), unless the injured person can prove malicious prosecution. See Northeast Airlines v. World Airways, Inc., 262 F. Supp. 316 (D. Mass. 1966). Plaintiff's voluntary dismissal, without defendant's consent, is generally a determination on the merits, so as to render plaintiff and his/her security liable on the injunction bond. See Middlewest Motor Freight Bureau v. United States, 433 F.2d 212 (8th Cir. 1970), cert. denied, 402 U.S. 999 (1971).

A TRO is not appealable. See Grant v. United States, 282 F.2d 165 (2d Cir. 1960). However, its extension beyond the time permitted by Fed. R. Civ. P. 65(b), is tantamount to a preliminary injunction, and it is then appealable. Sampson v. Murray, 415 U.S. 61 (1974); Telex Corp. v. IBM Corp., 464 F.2d 1025 (8th Cir. 1972); Sims v. Greene, 160 F.2d 512 (3d Cir. 1947); National Mediation Board v. Air Line Pilots Ass'n Int'l, 323 F.2d 305 (D.C. Cir. 1963).