Meta Appealing Denial of Injunction to Block FTC’s Administrative Proceeding

U.S. District Judge Randolph Moss for the District of Columbia granted Meta’s consent motion for a stay, through the close of business March 22, the deadline for Meta to respond to the FTC’s May 3 order to show cause why the commission shouldn’t modify its 2020 privacy consent order and enter the new restrictions on Meta’s business activities, said the judge’s signed order (docket 1:23-cv-03562).

The stay enables Meta to appeal the judge’s denial of Meta’s motion for a preliminary injunction to block the FTC’s administrative proceeding (see 2311300039). Without the stay, Meta's deadline to respond to the show cause order would have been March 15.

The show cause order said the FTC has reason to believe Meta failed to establish and implement an effective privacy program as the 2020 consent order mandated. Meta asked the court to declare that “fundamental aspects” of the FTC’s structure violate the Constitution, and that those violations “render unlawful” the FTC’s proceeding against Meta.

But Meta has “failed to carry its substantial burden of showing that it is entitled to extraordinary, equitable relief,” said the judge’s memorandum opinion and order. The judge also denied the FTC’s cross-motion to dismiss Meta’s complaint.

Though each of the Meta’s substantive arguments is “squarely foreclosed” by U.S. Supreme Court precedent, Moss recognizes that SCOTUS is currently considering a number of related issues in SEC v. Jarkesy (docket 22-859), said the memorandum opinion and order. It’s possible that the decision in that case “might cast portions of this case in a new light,” it said. Jarkesy was argued Nov. 29.

For “present purposes,” however, the court “will neither anticipate what the Supreme Court might hold in that case nor guess how, if at all, the Supreme Court’s forthcoming decision might bear on this case,” said the memorandum opinion and order. The court instead will “simply await” the Supreme Court’s decision in Jarkesy “before finally adjudicating this case,” it said.

The court will be guided by Supreme Court and D.C. Circuit precedent -- “whether decades old or brand new” -- in adjudicating this case, said the memorandum opinion and order. “To give existing precedent anything less than its full due based on speculation about what the Supreme Court might someday hold would exceed the authority of this Court, would inject grave uncertainty in the legal landscape, and would undermine the rule of law,” it said.

Without irreparable injury, a court “must decline to issue preliminary relief on that ground alone,” said the memorandum opinion and order in denying Meta’s request for an injunction. That principle “is dispositive here,” it said. Meta has failed to demonstrate that it’s likely to suffer irreparable injury in the absence of injunctive relief, “and its motion thus fails at the threshold,” it said.

This case is not the only one in which Meta has sought to enjoin the FTC’s pending order to show cause proceedings relating to the 2020 privacy consent order, said the memorandum opinion and order. In a “parallel” case, Meta sought an injunction to halt “the very same FTC proceedings at issue here, arguing that it would suffer irreparable harm if forced to participate in modification proceedings that the FTC allegedly lacked the authority to conduct,” it said. The judge dismissed that case because he “was unconvinced that preliminary relief was warranted,” it said.

The arguments that Meta made in that parallel case “overlap in significant respects with the arguments it makes in this case,” said the memorandum opinion and order. Here, Meta argues that it will suffer irreparable harm if it is forced to participate in an illegitimate proceeding, led by an illegitimate decisionmaker that lacks the authority to conduct the proceeding, it said. Dkt. 21 at 30 (quoting Axon Enterprises, Inc. v. FTC, 598 U.S. 175, 191 (2023)).

That argument doesn’t differ “in material respects” from the argument Meta “unsuccessfully pressed” previously, said the memorandum opinion and order. In that case, as here, Meta argued that the FTC lacked authority to conduct the administrative proceeding at issue, and there, as here, it argued that it would suffer irreparable injury if compelled to participate in such an unauthorized proceeding, it said.