Meta’s Emergency Motion Seeks to Block FTC’s Privacy Enforcement Action

Meta seeks an injunction pending appeal to preliminarily enjoin the FTC’s “structurally unconstitutional” privacy enforcement action against the company, said its emergency motion Monday (docket 24-5054) in the U.S. Court of Appeals for the D.C. Circuit.

U.S. District Judge Randolph Moss for the District of Columbia granted Meta’s consent motion to stay, through the close of business Friday, 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 (see 2403180001). Meta is asking the D.C. Circuit to extend that administrative stay while it considers its emergency motion for an injunction.

The FTC’s proceeding “illustrates the intolerable risk of bias and the separation of powers violations” that arise when the “unconstitutionally structured” commission “eschews Article III courts and adjudicates before itself,” said Meta’s emergency motion. That unconstitutional risk of bias “already has materialized in the FTC proceeding” against Meta, it said.

In its order to show cause, the FTC “is acting in its dual role as prosecutor and judge,” said the motion. As a prosecutor, the commission has accused Meta of violating the 2020 consent decree and required Meta to show cause why the 2020 order shouldn’t be modified, it said. As a judge, the FTC made a full record of 1,164 paragraphs of factual findings and issued conclusions that Meta is in noncompliance of the 2020 order as rationale as to why new modifications of the order are needed, it said.

Those findings and conclusions, both factual and legal, constitute “unconstitutional prejudgment,” said the emergency motion. They are logically inconsistent “with any potential for a subsequent ruling that Meta did comply with the prior orders” and that the 2020 order shouldn’t be modified, it said. Nowhere does the show cause order “contemplate” that the FTC “might determine that no modifications are needed,” it said.

An injunction pending appeal should be granted because each relevant factor “tips sharply in Meta’s favor,” said the emergency motion. Meta likely will succeed on the merits of its appeal, “which, at a minimum, will present serious legal questions,” it said.

Similar constitutional challenges to agency authority are being litigated nationwide, and they repeatedly have been found “sufficient to enjoin agency proceedings,” said the emergency motion. That demonstrates that Meta’s challenges “are worthy of adjudication on the merits” before Meta is subjected to the FTC’s “unconstitutional proceeding,” it said.

Meta likely will show that the commission’s dual role as prosecutor and judge “entails an unacceptable risk of actual bias,” said the emergency motion. The risk of bias inherent in that “conflicted role” has materialized throughout the commission’s adjudications “for decades,” it said.

Absent an injunction, Meta will suffer irreparable harm, said the emergency motion. This conclusion follows “inexorably” from the U.S. Supreme Court’s recent holding in Axon Enterprise v. FTC that being subjected to an agency’s unconstitutionally structured decision-making process is a “here-and-now” injury that, once suffered, would be impossible to remedy, it said. Axon’s holding “is directly relevant to preliminary injunctions,” it said.

The balance of equities and public interest “heavily favor an injunction,” said the emergency motion. The public interest favors vindication of constitutional rights, “whereas there is no public interest in unlawful agency action,” it said. A brief injunction pending appeal “will impose no cognizable injury on the FTC, which has shown no urgency in prosecuting the proceeding,” based on “outdated facts” known by the commission years before it brought the show cause order, it said.